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NHRI Laws

The National Human Rights Commission of Mongolia Act

By admin on December 7, 2000 1:31 PM

 

LAW OF MONGOLIA
7 December 2000, Ulaanbaatar city

THE NATIONAL HUMAN RIGHTS
COMMISSION OF MONGOLIA ACT



CHAPTER ONE
GENERAL PROVISIONS

Article 1. Purpose of the Law
1.1. The purpose of this Law shall be to determine legal basis and operational principles of, and to regulate the relations arising out of the exercise of powers by the National Human Rights Commission of Mongolia (hereinafter referred to as 'the Commission').

Article 2. Legislation on the Commission
2.1. Legislation on the Commission shall consist of the Constitution of Mongolia1 , this Law and other legislative acts enacted in conformity with them.
2.2. If an international treaty to which Mongolia is a State Party (the international treaties of Mongolia) provides otherwise than this Law, the provisions of that international treaty shall prevail.

Article 3. The Commission and its Operational Principles
3.1. The Commission is an institution mandated with the promotion and protection of human rights and charged with monitoring over the implementation of the provisions on human rights and freedoms, provided in the Constitution of Mongolia, laws and international treaties of Mongolia.
3.2. The Commission shall consist of 3 (three) members (Commissioners).
3.3. The Commission shall adhere in its operations to the principles of the rule of law, independence, protection of human rights, freedoms and legitimate interests, justice and transparency.
3.4. It shall be prohibited for any business entity, organisation, official or individual person to influence and/or interfere with the activities of the Commission and its Members.
CHAPTER TWO
APPOINTMENT AND RELEASE OF COMMISSIONERS,
SUSPENSION OF THEIR POWERS AND DISMISSAL

Article 4. Candidates for Commissioners
4.1. A candidate for Commissioners shall be a Mongolian citizen of high legal and political qualification, with appropriate knowledge and experience in human rights, with a clean criminal record and who has reached the age of 35 (thirty-five).

Article 5. Nomination of Candidates for and Appointment of Commissioners
5.1. The Speaker of the State Great Hural (Parliament) shall nominate names for candidates for Commissioners to the State Great Hural on the basis of respective proposals by the President, the Parliamentary Standing Committee on Legal Affairs and the Supreme Court.
5.2. If the State Great Hural declines to appoint a candidate as a Commissioner, then the Speaker of the State Great Hural shall submit the name of another person within 14 (fourteen) days in accordance with procedure provided in Art 5.1.
5.3. A name of the same person shall not be nominated again.
5.4. The State Great Hural shall consider and decide on this issue within 30 (thirty) days from the date of submission of the names for candidates.
5.5. In case any of Commissioners has been released, resigned from his/her official position or deceased before the expiry of the term of his/her office, the Great State Hural shall appoint replacement for that Commissioner within 60 (sixty) days from that date in accordance with this Law.
5.6. A Chief Commissioner shall be appointed for a term of 3 (three) years from among Commissioners by the State Great Hural, based on the proposal by the Speaker of the State Great Hural.
5.7. Commissioners shall not hold any job or office concurrently other than that mandated by this Law, except that of engaging in training and research. If any of Commissioners has been holding another job or office before his/her appointment, then he/she shall be released from that job or office from the day on which he/she has taken an oath of office.

Article 6. Term of Office of Commissioners
6.1. A single term of office for Commissioners shall be 6 (six) years.
6.2. Powers of Commissioners shall start by taking an oath of office to the Constitution of Mongolia, and shall end by the swearing in of the newly appointed Commissioners.
6.3. Commissioners may be re-appointed only once.

Article 7. Swearing in of the Members of Commission
7.1. Commissioners shall take an oath of office to the Constitution of Mongolia within 30 (thirty) days from the date of appointment by swearing in: 'I do swear to observe faithfully the Constitution of Mongolia, and to fulfil dutifully my obligations to promote and protect the human rights and freedoms, which are guaranteed in the laws and international treaties of Mongolia.'
7.2. The Speaker of the State Great Hural shall approve the procedure for ceremony of taking an oath by Commissioners.

Article 8. Release and Suspension from the Office, and Dismissal of Commissioners
8.1. The State Great Hural shall release a Commissioner from his/her office in the following cases:
8.1.1. A Commissioner has been nominated as a candidate for the President of Mongolia, or for the Member of the State Great Hural;
8.1.2. A Commissioner has been appointed or elected to another official position;
8.1.3. A Commissioner has requested on his/her own because he/she becomes unable to exercise his/her powers due to health conditions or for any other excusable reasons.
8.2. The State Great Hural shall discuss and make a decision within 14 (fourteen) days from the date of receipt of a proposal and decision from the competent authority on whether to suspend his/her powers, if a Commissioner has been implicated in the crime, as well as has been arrested as provided in Art 23.1. of this Law.
8.3. The State Great Hural shall restore his/her powers and adopt a resolution to that effect, on the basis of a decision by the competent authority or official, which has established that a Commissioner has not been implicated in the crime or not guilty of committing it.
8.4. The State Great Hural shall dismiss him/her from the office and adopt a resolution to that effect, if a crime, which has been proved to be committed by a Commissioner, and a final binding judgement to that effect by the Court has come into force.
CHAPTER THREE
COMPLAINTS LODGING TO THE COMMISSION

Article 9. Right to Lodge Complaints
9.1. Citizens of Mongolia, either individually or in a group, shall have the right to lodge complaints to the Commission in accordance with this Law, in case of violations of human rights and freedoms, guaranteed in the Constitution of Mongolia, laws and international treaties of Mongolia, by business entities, organisations, officials or individual persons.
9.2. Unless otherwise provided in laws and international treaties of Mongolia, foreign citizens and/or stateless persons who are residing in the territory of Mongolia, shall exercise the same right to lodge complaints to the Commission on equal footing as the citizens of Mongolia.
9.3. Complaints may be lodged in by representation of lawful representatives-parents, care-takers and/or guardians for the persons, who do not have full civil law capacity or have some limited or partial capacity, as well as by representatives provided under the law for the persons, who are considered missing or declared as deceased.
9.4. Non-governmental organisations and trade union organisations shall exercise equally the right provided in Art 9.1. and lodge complaints through their representatives.
9.5. Representatives provided in Art 9.3 and Art 9.4 shall have a document of proof for their own representation powers.

Article 10. Form of Lodging Complaints
10.1. Complaints shall be lodged in writing in Mongolian language or verbally in person. Persons, who do not know Mongolian language, may lodge complaints in their mother tongue and their complaints must be translated into Mongolian language and duly certified in accordance with procedure provided for it.

Article 11. Requirements for Complaints
11.1. Complaints shall reflect the following items:
11.1.1. A Complainant must have had his/her complaint decided through an administrative process;
11.1.2. A Complainant must indicate, which rights and freedoms guaranteed in the Constitution of Mongolia, laws and international treaties of Mongolia, have been violated;
11.1.3. The Complainant must write his/her own name, residential or postal address, and has signed it;
11.1.4. The Complainant must attach the name, address, phone-number and other related documents of the business entity, organisation, official or individual person who is implicated in the complaint;
11.2. Commissioners shall not receive complaints about criminal and civil cases and/or disputes, which are at the stage of registration/inquiry of cases, investigation and/or on trial or have been already decided.

Article 12. Period for Receiving and Replying to Complaints
12.1. A Complainant shall lodge a complaint within 1 (one) year from the date on which his/her rights and freedoms were violated or from the date on which he/she came to know about such violation.
12.2. The Commission shall not accept any complaint without a name or address on it.
12.3. The Commission shall give a reply within 30 (thirty) days from the date of receipt of a complaint, and if there is need for additional research and inquiry required, the Chief Commissioner may extend it up to 60 (sixty) days.
CHAPTER FOUR
POWERS OF THE COMMISSION AND ITS MEMBERS

Article 13. Powers of the Commission
13.1. The Commission shall exercise the following powers:
13.1.1. To put forward proposals on any human rights-related issues;
13.1.2. To put forward recommendations and/or proposals on whether laws or administrative decisions are in conformity with the key human rights principles;
13.1.3. To put forward proposals on the implementation of international human rights treaties and/or drafting of Government reports thereon;
13.2. The Commission shall carry out the following activities within its powers:
13.2.1. To conduct research on human rights issues and provide necessary information;
13.2.2. To collaborate with the international, regional and other national human rights institutions;
13.2.3. To produce reports on the human rights situation in Mongolia;
13.2.4. To increase public awareness about the laws and/or international treaties relating to human rights;
13.2.5. To promote human rights education activities;
13.2.6. To encourage ratification of and/or accession to the international human rights treaties.

Article 14. Powers of the Chairperson of the Commission
14.1. A Chief Commissioner shall exercise the following powers.
14.1.1. To represent the Commission in domestic and/or foreign relations;
14.1.2. To appoint and/or release the Director of the Staff;
14.1.3. To deal with internal organisational matters of the Commission;

Article 15. Powers of Commissioners with respect to the acceptance of Complaints
15.1. Commissioners shall exercise the following powers with respect to the acceptance of complaints:
15.1.1. To accept and examine complaints;
15.1.2. To refuse to accept the complaints which do not meet the requirements provided in Art 11 of this Law;
15.1.3. To transfer complaints with respect to criminal and/ or civil cases and disputes to relevant authorities or officials according to their jurisdiction;
15.1.4. To explain to the Complainant what rights and duties he/she has with regard to the restoration of violated rights.

Article 16. Powers of Commissioners with respect to Inquiry of Complaints
16.1. Commissioners shall exercise the following powers during the course of inquiry into complaints:
16.1.1. To take explanations in writing from the Complainant and relevant business entities, organisations, officials or individual persons and take explanations orally and take notes thereon if the Complainant is illiterate;
16.1.2. To summon the Complainant and relevant persons;
16.1.3. To have unrestricted access to any business entity or organisation and to participate in their meetings and conferences, and to meet in person with the relevant officials;
16.1.4. To obtain without any charge the necessary evidence, official documents and information from organisations and/or officials, and to get acquainted with them on the spot;
16.1.5. To appoint experts from the appropriate organisations in a case of necessity for the specialised knowledge, and to get their expert-opinions;
16.1.6. To transfer a complaint to the relevant authorities or officials according to their jurisdiction, if it is considered that this complaint has a nature of criminal or civil case during the course of examination;
16.1.7. To conduct alone an inquiry into the activities of business entities, organisations or officials, or jointly on the basis of a proposal by the competent State authority and their officials;
16.1.8. To access the confidential data/secrets of the State, organisation or individual person in accordance with procedure established by the relevant law, if Commissioners considers it necessary during the course of exercise of his/her powers;
16.2. Commissioners shall keep in good faith the confidential data/secrets of the State, organisation or individual person, which he/she came to know about during the course of conducting the official business or which has been informed to him/her in trust.

Article 17. Powers of Commissioners in respect of Decision-making on Complaints
17.1. Commissioners shall exercise the following powers with respect to making a decision on complaints:
17.1.1. To submit claims to the Courts with regard to issues of violations of human rights and freedoms by business entities, organisations, officials or individual persons to participate in person or through a representative in judicial proceedings in accordance with procedure established by the law;
17.1.2. To put forward requests to the competent authorities or officials with regard to imposing administrative sanctions on officials who, as he/she considers, have violated human rights and freedoms;
17.1.3. To demand organisations or officials to stop activities which violate human rights and freedoms, or which create conditions for such violations;
17.1.4. To decide the issues by way of conciliation of the parties.
17.1.5. To return a complaint to the Complainant if he/she considers it to be without grounds.
17.2. Claims lodged under Art 17.1.1 shall be exempted from court expenses.
17.3. Commissioners shall have an obligation to inform the Complainant with regard to results of his/her complaint examination activities.

Article 18. Other Powers of Commissioners with respect to Fulfilling of Human Rights and Freedoms
18.1. Commissioners may participate in the advisory capacity in sessions of the State Great Hural or in meetings of the Government Cabinet at the request of the Speaker of the State Great Hural or the Prime Minister.
18.2. Commissioners may conduct inquiries at his/her own initiative on the basis of information with regard to violations of human rights and freedoms or at the request of business entities, organisations or officials.
18.3. Commissioners shall get acquainted with the decisions concerning civil and criminal cases as well as have access to the documents which rejected instituting a case or the cases which have been dropped, with a view to conducting human rights research.
18.4. Commissioners shall refer to the officials or authorities with law-initiating competence his/her proposals with regard to improving the legislation connected with fulfilling human rights and freedoms.
18.5. Commissioners shall provide advice on human rights issues at the request of State authorities.

Article 19. Demands and Recommendations of Commissioners
19.1. Commissioners shall issue demands and/or make recommendations during the course of exercise of his/her powers.
19.2. Commissioners shall write and deliver demands to relevant organisations in order to restore human rights and freedoms and eliminate the violations if he/she has considered that business entity, organisation or official has violated human rights and freedoms.
19.3. Commissioners shall make recommendations within his/her own competence and deliver them to relevant business entities, organisations or officials in order to eliminate reasons and conditions in case there is possibility for violations of human rights and freedoms.
19.4. Business entities, organisations or officials shall inform in writing with regard to measures undertaken within 1 (one) week if they have received demands, and within 30 (thirty) days if they have received recommendations from Commissioners.
19.5. Commissioners may approach the Court, according to the procedure established by law, with regard to the business entities, organisations or officials which have refused to undertake relevant measures as provided under his/her demands and/or recommendations.
19.6. Commissioners shall have a right to publish and report his/her issued demands or recommendations through the mass media.

Article 20. Report of the Commission
20.1. The Commission shall submit to the State Great Hural a report on the human rights situation in Mongolia within the 1st (first) quarter of every year.
20.2. Report of the Commission shall be published in the 'State Gazette'.
CHAPTER FIVE
GUARANTEES FOR THE POWERS OF COMMISSIONE

Article 21. Political Guarantees
21.1. It shall be prohibited for the Commission and its Secretariat to conduct political activities. Commissioners shall suspend his/her political party membership during the period of his/her term of office.
21.2. Commissioners shall treat respectfully his/her official position in exercising his/her freedom of thought, opinion and expression, of speech and press, of conscience and religious belief.

Article 22. Economic and Social Guarantees
22.1. Expenses for the activities of Commissioners shall be financed from the State Consolidated Budget, and the State shall provide economic guarantees for carrying out his/her activities.
22.2. The State Great Hural shall approve and reflect specifically the budget of the Commission in the State Consolidated Budget on the basis of a latter's proposal, and this budget shall fulfil the requirements for the independent conduct of its activities.
22.3. Commissioners shall receive a salary equal to that of the Member of the Government Cabinet.
22.4. In case the term of office of Commissioners has expired, or he/she has been relieved from the office because of the health condition or for any other excusable reasons, Commissioners shall be provided with the allowance for period of up to 6 (six) months, which is not less than the salary level when he/she was Commissioners, until he/she gets transferred to another job or official position in line with his/her profession or expertise, or get employed in different job without scaling down the salary, and if he/she is employed in job with lesser salary, then he/she shall be provided with the difference of that salary during the same period.

Article 23. Legal Guarantees
23.1. If Commissioners has been arrested in a criminal act or on the site of crime with all implicating evidence, it shall be reported by the relevant official to the Chairperson of the State Great Hural within the following 24 (twenty four) hours. In all other cases it shall be prohibited to detain, imprison or impose administrative sanctions by way of a judicial process on Commissioners, and to conduct the search of his/her home, office room and body.
23.2. Unless otherwise provided by the law, it shall be prohibited to release and/or dismiss Commissioners as well as to transfer him/her to another job or official position without his/her consent.
23.3. It shall be prohibited to divulge the confidentiality of correspondence related to the exercise of powers by Commissioners.
23.4. Business entities, organisations and their officials and citizens shall have obligations to render all kinds of assistance to Commissioners in exercise of his/her powers.
CHAPTER SIX
MISCELLANEOUS

Article 24. Work Organisation of the Commission
24.1. The Commission shall have a Secretariat. The Commission shall approve the by-laws of its Secretariat, and shall establish the posts and salary fund within the budget limits approved by the State Great Hural.
24.2. Staff of the Commission shall be civil administrative servants.
24.3. The Commission may establish ex-officio boards, which consist of the representatives of advocates' association, confederation of trade unions and/or human rights non-governmental organisations, to be assisted in conducting its activities.
24.4. The Commission may have research conducted by research organisations or non-governmental organisations on the issues, which are considered as required.

Article 25. Seal, Stamp and Official Blank Paper of the Commission
25. The Commission shall use a seal, stamp and official blank paper with the State Coat of Arms, made according to the regulation established.

Article 26. Liability for Violation of the Law on the Commission
26.1. The Court shall impose the following administrative sanctions on the persons who has violated this Law:
26.1.1. A citizen who has violated Art 3.4 of this Law shall be liable to a fine of Tg 5,000-40,000, an official to Tg 10,000-50,000, and a business entity or organisation to Tg 50,000-150,000 (Tugrug is national currency);
26.1.2. A citizen who has violated Art 19.4 and Art 23.4 of this Law shall be liable to a fine to Tg 10,000-50,000, an official to Tg 20,000-60,000 and a business entity or organisation to Tg 30,000-250,000.

SPEAKER OF THE STATE GREAT HURAL        L. ENEBISH
Note :
1. The Constitution of Mongolia was published in the issue # 1of 1992 of the 'State Gazette'.

National Human Rights Commission, B.E. 2542 (1999) (Thailand)

By admin on November 25, 1999 1:36 PM

 

NATIONAL HUMAN RIGHTS COMMISSION ACT B.E. 2542 (1999)*

BHUMIBOL ADULYADEJ, REX.
Given on the 25th Day of November, B.E. 2542;
Being the 54th Year of the Present Reign.


  His Majesty King Bhumibol Adulyadej is graciously pleased to proclaim that :
  Whereas it is expedient to have a law on the National Human Rights Commission;
  This Act contains provisions relating to the restriction of rights and liberties of the people which section 29 together with section 35 and section 48 of the Constitution of the Kingdom of Thailand allow to be done by virtue of provisions of law;
  Be it, therefore, enacted by the King, by and with the advice and consent of the National Assembly as follows;

Section 1. This Act is called the "National Human Rights Commission Act, B.E. 2542".

Section 2. This Act shall come into force as from the day following the date of its publication in the Government Gazette.

Section 3. In this Act :
  "human rights" means human dignity, right, liberty and equality of people which are guaranteed or protected under the Constitution of the Kingdom of Thailand or under Thai laws or under treaties which Thailand has obligations to comply;
  "Commission" means the National Human Rights Commission;
  "President" means the President of the National Human Rights Commission;
  "member" means a member of the National Human Rights Commission.

Section 4. The President of the National Human Rights Commission shall have charge and control of the execution of this Act and shall have the powers to issue Regulations or Notifications with the approval of the National Human Rights Commission for the execution of this Act.
  Regulations and Notifications under paragraph one that are of general applicability shall come into force after their publication in the Government Gazette.
CHAPTER I
The National Human Rights Commission

Section 5. There shall be the National Human Rights Commission consisting of a President and ten other members appointed, by the King with the advice of the Senate, from the persons having apparent knowledge or experiences in the protection of rights and liberties of the people, having regard also to the participation of men and women and representatives from private organizations in the field of human rights.
  The President of the Senate shall countersign the Royal Command appointing the President and members.

Section 6. The President and members shall have the qualifications and shall not be under any prohibition as follows:
  (1) being of Thai nationality by birth;
  (2) being not less than thirty five years of age;
  (3) not being a member of the House of Representatives or the Senate, a political official, a member of a local assembly or a local administrator;
  (4) not being a holder of any position of a political party;
  (5) not being of unsound mind or of mental infirmity;
  (6) not being addicted to drugs;
  (7) not being a bankrupt;
  (8) not being a person sentenced by a judgement to imprisonment and being detained by a warrant of the Court;
  (9) not being a person having been discharged for a period of less than five years on the nomination day after being sentenced by a judgment to imprisonment for a term of two years or more except for an offence committed through negligence;
  (10) not having been expelled, dismissed or removed from the official service, a State agency or a State enterprise or from a private agency on the ground of dishonest performance a duties, gross misconduct or corruption;
  (11) not having been ordered by a judgement or an order of the Court that his or her assets shall dissolve on the State on the ground of unusual wealthiness or an unusual increase of his or her asset;
  (12) not being an Election Commissioner, an Ombudsman, a member of the National Counter Corruption Commission, a member of the State Audit Commission or a member of the National Economic and Social Council;
  (13) not having been removed from office

Section 7. A person elected as a member shall :
  (1) not be a Government official holding a permanent position or receiving salary;
  (2) not be official or employee of a State agency, State enterprise or local government organization or not be a director or advisor of a State agency;
  (3) not hold any position in a partnership, a company or an organization carrying out business for sharing profits or incomes, or be an employee of any person.
  In the case where the Senate has elected a person in (1), (2) or (3) with the consent of that person, the elected person can commence the performance of duties only when he or she has resigned from the position in (1), (2) or (3). This shall be done within fifteen days as from the date of election. If that person has not resigned within the specified time, it shall be deemed that that person has never been elected to be a member and a new member shall be selected and elected.

Section 8. The selection and election of members shall be proceeded as follows :
  (1) there shall be a Selective Committee consisting of the President of the Supreme Court, the President of the Supreme Administrative Court, the Prosecutor-General, the Chairman of the Law Council, Rectors or representatives of higher education institutions which are juristic persons; provided that each institution shall have one representative and all such representatives shall elect among themselves to be five in number, representatives of private organizations in the field of human rights under section 24; provided that each organization shall have one representative and all such representatives shall elect among themselves to be ten in number, representatives of political parties having a member who is a member of the House of Representatives; provided that each party shall have one representative and all such representatives shall elect among themselves to be five in number, representatives of public media in the businesses of newspaper, radio broadcasting and television broadcasting, being elected from each business to be three in number and the Secretary-General of the National Human Rights Commission as secretary. The Selective Committee shall have the duties to select and prepare a list of names of twenty two persons who are suitable to be members under section 5; provided that regard must be given to participation of woman and men, and submit such list to the President of the Senate. The nomination must be made with consent of nominated persons including documents or evidence showing that the nominated persons are suitable to be members and have the qualifications and are under no prohibitions under section 6 within sixty days as from the date when a ground for the selection of persons to be in such office occurs. The resolution making such nomination must be passed by votes of not less than three-fourths of the number of all existing members of the Selective Committee;
  (2) the President of the Senate shall convoke the Senate for passing, by secret ballot, a resolution selecting the nominated persons under (1). For this purpose, persons who receive the highest votes which are more than one-haft of the total number of the existing senators shall be elected as numbers in consecutive order, but if no persons are elected or if less than eleven persons are elected, the name-list of those not elected on the first occasion shall be submitted to the senators for voting on another occasion. In such case, the persons who receive the highest votes which are more than one-haft of the total number of the existing senators shall be deemed to be elected as numbers. In the case where there are persons receiving equal votes in any order resulting in having more than eleven elected persons, the President of the Senate shall draw lots to determine who are elected persons. In the case where no person is elected or where less than eleven persons are elected, the Selective Committee shall proceed with the selection and preparation for a list of persons under (1) to be submitted to the Senate for passing a resolution for reelection.
  The elected persons under (2) shall meet and elect among themselves the President and notify the President of the Senate of the result. The President of the Senate shall tender the matter to the King for further appointment.

Section 9. Members shall perform their duties with independence and impartiality and shall have regard to the interests of the country and the public.
  Members shall be a State official under the organic law on counter corruption.

Section 10. Members shall hold office for a term of six years as from the date of their appointment by the King and shall serve for only one term.
  Member who vacate office upon the termination of the term shall remain in office to continue to perform their duties until the newly appointed members take office.
  In order to have the newly appointed members to perform their duties upon the termination of the term of the outgoing members, the proceeding of selection and election for the new members shall be proceeded sixty days prior to the expiration of the term of the outgoing members.

Section 11. Members of the House of Representatives or senators of not less than one-fourth of the total number of the existing members of each house have the right to lodge with the President of the Senate a complaint in order to request the Senate to pass a resolution removing a member from office on the grounds that such member has performed his or her duties without giving regard to the interests of the country and the public or with partiality or misconduct or immoral conduct that may seriously affect or damage the performance of his or her duties or the promotion or protection of human rights, or of having any interest in any activity or business which has directly affected or caused the same damage therein, or having or having had a conduct in violation of human rights or being seriously defective in performing his or her duties.
  The resolution of the Senate under paragraph one shall be passed by votes of not less than three-fifths of the total number of the existing members of the Senate.

Section 12. In addition to the vacation of office upon the termination of the term, a member vacates office upon :
  (1) death;
  (2) resignation;
  (3) being disqualified or being under any of the prohibitions under section 6;
  (4) acting in contravention of section 7;
  (5) being removed from office by a resolution of the Senate under section 11;
  (6) being removed from office by a resolution of the Senate under the organic law on counter corruption.
  Where a case under paragraph one occurs, the remaining members may continue the performance of duties and it shall be deemed that the Commission consists of the remaining members, except where remaining thereof are less than seven.

Section 13. In the case where members vacate office under section 12, the proceedings under section 8 shall be commenced within thirty days as from the date members vacate their office. In this case, the Selective Committee shall prepare a list of persons twice the number of those vacating office and submit such list to the President of the Senate.
  In the case where members vacate office when the National Assembly is not in session, the proceedings under section 8 shall be proceeded within thirty days as from the date the National Assembly commences its session.

Section 14. At a meeting, the presence of not less than one-half of the total number of existing members shall constitute a quorum.
  The President shall preside over the meeting. If the President dose not attend the meeting or is unable to perform his or her duties, the members present shall elect one among themselves to preside over the meeting.
  The decision of the meeting shall be made by majority of votes; in case of an equality of votes, the person presiding over the meeting shall have an additional vote as casting vote.
  In a meeting, if there is a consideration of a matter in which a member has a private interest, that member has no right to attend such meeting.

Section 15. The Commission has the powers and duties as follows :
  (1) to promote the respect for and the practice in compliance with human rights principles at domestic and international levels;
  (2) to examine and report the commission or omission of acts which violate human rights or which do not comply with obligations under international treaties relating to human rights to which Thailand is a party, and propose appropriate remedial measures to the person or agency committing or omitting such acts for taking action. In the case where it appears that no action has been taken as proposed, the Commission shall report to the Nation Assembly for further proceeding;
  (3) to propose to the National Assembly and the Council of Ministers policies and recommendations with regard to the revision of law, rules or regulations for the purpose of promoting and protecting human rights;
  (4) to promote education, researches and the dissemination of knowledge on human rights;
  (5) to promote co-operation and co-ordination among Government agencies, private organizations, and other organizations in the field of human rights;
  (6) to prepare an annual report for the appraisal of situation in the sphere of human rights in the country and submit it to the National Assembly and the Council of Ministers and disclose to the public;
  (7) to assess and prepare an annual report of the performance of the Commission and submit it to the National Assembly;
  (8) to propose opinions to the Council of Ministers and the National Assembly in the case where Thailand is to be a party to a treaty concerning the promotion and protection of human rights;
  (9) to appoint a sub-committee to perform the tasks as entrusted by the Commission;
  (10) to perform other acts under the provisions of this Act or as the law prescribed to be the powers and duties of the Commission.

Section 16. The President and the members shall work regularly on a full-time basis and shall receive monthly remuneration and travel allowance in accordance with the rules and rates as prescribed by a Royal Decree.
  The sub-committee shall receive meeting and travel allowances in accordance with the rules and rates as prescribed by a Royal Decree.
CHAPTER II
The Office of the National Human Rights Commission

Section 17. There shall be the Office of the National Human Rights Commission having the status of a Government agency attached to the National Assembly under the law on the organization of the National Assembly and shall be under the supervision of the President.

Section 18. The Office of the National Human Rights Commission has the responsibility in the general affairs of the Commission and shall have the powers and duties as follows :
  (1) to be responsible for the administrative works of the Commission;
  (2) to receive petition of human rights violation and submit it to the Commission and to investigate or examine matters which are petitioned as entrusted by the Commission;
  (3) to conduct study on and promote education and the dissemination of knowledge in the field of human rights;
  (4) to co-operate with Government agencies, private organizations or any other organizations in the field of human rights of the purpose of protecting human rights;
  (5) to carry out any other performance as entrusted by the Commission.

Section 19. Officials of the Office of the National Human Rights Commission shall be ordinary officials of the National Assembly under the law on parliamentary official service.
  The powers and duties of the Parliamentary Official Service Commission shall be the powers and duties of the Commission and the President shall be in charge of the administration of the affairs and personal administration of officials of the Office of the National Human Rights Commission under the law on the organization of the National Assembly and the law on parliamentary official service.

Section 20. The Office of the National Human Rights Commission shall have the Secretary-General of the National Human Rights Commission who is responsible for the performance of duties of the Office of the National Human Rights Commission, directly answerable to the President and who is the superior of officials and employees of the Office of the National Human Rights Commission. There shall also be Deputy Secretary-General of the National Human Rights Commission to assist the Secretary-General in the performance of duties.

Section 21. The Office of the National Human Rights Commission shall, with the consent of the Commission, submit an estimated annual budget to the Council of Ministers via the President of the National Assembly for its consideration of appropriation budgets, adequate for the independent administration of the Commission, in an annual appropriations bill or supplementary appropriations bill, as the case may be, In this matter, the Council of Ministers, the House of Representatives, the Senate or the Standing Committees may, if requested by the President, allow the President or the persons entrusted by the President to give explanations.
CHAPTER III
Examination of Human Rights Violations

Section 22. The Commission shall have the duties to examine and propose remedial measures under this Act for the commission or omission of acts which violate human rights and which is not a matter being litigated in the Court or that upon which the Court has already given final order or judgement.

Section 23. Any person whose human rights are violated has the rights to lodge a petition in writing which shall contain details as follows :
  (1) name and address of the petitioner or his or her representative;
  (2) facts and circumstances which are causes of the commission or omission of acts which violate human rights;
  (3) signature of the petitioner or representative appointed in writing by the petitioner.
  Petition may be made verbally in accordance with a Regulation issued by the Commission.
  The petition shall be submitted at the office of the National Human Rights Commission or by registered post with return receipt or to any member or via a private organization in the field of human rights to be referred to the Office of the National Human Rights Commission or by any other mean as prescribed by the Commission.
  Upon receiving the petition under paragraph one, the Office of the National Human Rights Commission shall, without delay, notify the petitioner or the representative;provided that notification shall be made no later than three days as from the date the petition is received.

Section 24. In the case where a petition from a person whose human rights are violate is lodged with a private organization in the field of human rights or where there appears to the said organization of such committed or omitted act thereof, if that organization considers the case to be prima facie it may propose the matter to the Commission for further proceeding.
  A private organization in the field of human rights under paragraph one shall be a juristic person under Thai law which carries out business directly related to the promotion and protection of human rights as prescribed by the Commission and which does not have political objectives or seeks profits from carrying out such business.

Section 25. In the case where the Commission deems it appropriate to examine any case of a human rights violation or where the Commission has received a petition of human rights violation under section 23 or has received a petition from a private organization in the field of human rights under section 24 and is of the opinion that it is a prima facie case which is under its powers and duties, the Commission shall notify a person or agency alleged to be a human rights violator or a person or agency whom the Commission considers to be involved in human rights violation to give a responded statements of facts within the period specified by the Commission. In the said notification, the Commission shall summarize details of facts sufficiently for a correct and complete response.
  In the case where the Commission deems the received matter is not within its powers and duties or has rejected to consider such matter, the Commission shall, without delay, notify the petitioner or the private organization in the field of human rights of which the petition is submitted, and, for the interest of protecting human rights, may refer the matter to a person or agency involved with the matter as it deems appropriate.
  In the case where the Commission deems the matter should be appropriately considered by another responsible agency, it may refer the matter to such agency regardless of the stage of proceeding of the matter. In this case, the Commission may make a written inquiry of the progress to the agency. If it appears that that agency has not proceeded or has rejected to consider the matter, the Commission may bring the matter back to its consideration; provided that such matter is within its powers and duties.
  In making a referral to another agency or bringing back the matter for consideration under paragraph three, the Commission shall, without delay, notify the petitioner or the private organization that has made a submission.

Section 26. When the period for responding statements of facts under paragraph one of section 25 has lapsed, the Commission shall proceed its examination of human rights violation by giving the petitioner and those involved an opportunity to provide details and present appropriate evidence to prove facts concerning the act alleged to be a human rights violation.
  In conducting the examination of the human rights violation under paragraph one, if the parties are required to be present before the Commission, the parties have the right to bring lawyers or their counsel to the examination proceedings in accordance with the rules prescribed by the Commission.
  In conducting the examination of a human rights violation, the Commission may appoint one or more sub-committee to carry out investigation and making factual inquiry, hearing responding statement of facts and evidence and preparing a report in accordance with the regulation prescribed by the Commission and submit it to the Commission. In this case, the subcommittee shall have the same powers and duties as the Commission, except as provided otherwise by the Commission.
  In carrying out the examination of human rights violation, the Commission may appoint an official to assist in the performance thereof.

Section 27. In conducting the examination of human rights violation, the Commission shall, if it deems mediation is possible, mediate between persons or agencies involved to reach an agreement for compromise and solution of the problem of human rights violation. It the parties agree to compromise and solve the problem and the Commission considers the agreement is within the scope of human rights protection, the Commission shall prepare a written agreement for the parties and settle the matter.
  If it appears to the Commission thereafter that there is non-compliance with the written agreement under paragraph one, the Commission shall further proceed with the examination under its power and duties.

Section 28. If the Commission is, subject to section 27 and when the examination is completed, of the opinion that there is a commission or omission of acts which violate human rights, the Commission shall prepare a report of the examination which shall specify details of the circumstances of human rights violation, reasons for such opinion and remedial measures for solving human rights violation which shall clearly set forth the legal duties and methods of performance of a person or agency, including the period for implementation of such measures.
  In setting forth the remedial measures under paragraph one, the Commission may require a person or agency to perform his or its duties by appropriate methods to prevent a recurrence of similar human rights violation.
  In the case the Commission is of the opinion that the said commission or omission of acts does not violate human rights but there is an unjust practice from which the aggrieved person deserved a remedy, the Commission may set forth remedial guidelines and notify a person or agency to appropriately perform within the scope of powers and duties of such person or agency.
  The Commission shall promptly notify the examination report to the person or agency having duties to perform and to the petitioner in case a petition has been lodged with the Commission.

Section 29. The person or agency shall, upon receiving the examination report under section 28, implement the remedial measures for solving the problem of human rights violation within the period specified by the Commission and shall notify the results of the implementation to the Commission.
  In the case where the implementation of the remedial measures for solving the problem of human rights violation cannot be completed within the specified period, the person or agency shall, before the expiration of the previous period, request the Commission for an extension of the implementation period together with reasons and the length of period sought for extension; provided that no request shall be made for an extension of the implementation period more than two times.

Section 30. When the period under section 29 is lapsed, if the person or agency has not implemented the remedial measures for solving the human rights violation or has not completed the implementation without justifiable reasons, the Commission shall report to the Prime Minister to order an implementation of the remedial measures within sixty days as from the date the report is received. In this case, the Commission shall specify, to the Prime Minister, details for the exercise of the legal power in the issuance thereof, except the implementation of such remedial measures is not within the power of the Prime Minister, the Commission shall proceed in accordance with section 28.

Section 31. In the case where no proceeding or order for the implementation of remedial measures for solving the human rights violation under section 30 has been taken, the Commission shall report to the Nation Assembly 0for further proceeding. In reporting to the National Assembly, if the Commission deems it beneficial to the public, the Commission may disseminate to the public the case in which no implementation of remedial measures for solving the human rights violation has been taken.

Section 32. In the performance of duties, the Commission shall have the powers as follows :
  (1) to summon a Government agency, State agency or State enterprise to give written statements of facts or opinions concerning the performance of official duty or other duties or to deliver objects, documents or other related evidence or to send a representative to give statements;
  (2) to summon a person, juristic person or private agency concerned to give statements or to deliver objects, documents or other related evidence at the date, time and place as specified. The delivery of a summons shall be made by a registered post with return receipt to the domicile or office of the receiver. In the case where the delivery by the said mean cannot be made or no action was taken in accordance with the summons within reasonable period, the Commission shall redeliver the summons by the said means or by other means as the Commission deems appropriate;
  (3) to request the Court of proper jurisdiction to issue a warrant for entering into a dwelling or any place for the benefits of examining facts or gathering related evidence which shall be proceeded as necessary and without delay. Before commencing an examination or gathering of evidence, a member or an official entrusted shall manifestly show no concealment on this personal identity and shall, as far as possible, conduct the examination and gathering thereof in the presence of the occupier or the caretaker of the place or relevant person. If such persons cannot be found, the examination and gathering shall be conducted in the presence of at least two persons invited to be witnesses. In this case, the occupier or the caretaker of the place or relevant person shall facilitate the performance of duties of the member or the delegated official;
  (4) to issue Regulation concerning rules and methods of playing living expense and travel allowance for the witness or the official appointed by the Commission to examine human rights violation.

Section 33. In the performance of duties under this Act, members, members of the sub-committee or official appointed by the Commission to examine human rights violation shall be official under the Penal Code.
CHAPTER IV
Panalties

Section 34. Any person, who fails to give statement, deliver objects, documents or evidence as summoned under section 32(2) shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding ten thousand Bath, or to both.

Section 35. Any person, who resists or obstructs the performance of duties under section 32(3) shall be liable to imprisonment for a term not exceeding one year or to a fine not exceeding twenty thousand Bath, or to both.
Transitory Provisions

Section 36. The Selective Committee shall commence the selection proceeding for the election of members under section 8 within sixty days as from the date this Act comes into force.

Section 37. In the case where there is a selection of members when there is no President of the Supreme Administrative Court, Secretary-General of the National Human Rights Commission and private organizations under section 24, the Selective Committee under section 8 shall consist of the President of the Supreme Court, the Prosecutor-General, the Chairman of the Law Council, Rectors or representatives of higher education institutions which are juristic persons, provided that each institution shall have one representative and all such representatives shall elect among themselves to be five in number, representatives of private organizations in the field of human rights that have registered with the Secretariat of the Senate within thirty days as from the date this Act comes into force, provided that each organization shall have one representative and all such representatives shall elect among themselves to be ten in number, representatives of political parties having a member who is a member of the House of Representatives, provided that each party shall have one representative and all such representatives shall elect among themselves to be five in number, representatives of public media in the businesses of newspaper, radio broadcasting and television broadcasting, being elected from each business to be three in number and the Secretary-General or Senate as secretary.
  The rules and procedures for the registration of private Organization under paragraph one shall be as specified by the President of the Senate.


SOURCE : http://www.krisdika.go.th/

Human Rights Commission of Malaysia Act 1999 (Malaysia)

By admin on September 9, 1999 1:30 PM

 

LAWS OF MALAYSIA
ACT 597

HUMAN RIGHTS COMMISSION OF MALAYSIA ACT 1999


ARRANGEMENT OF CLAUSES
PART I PRELIMINARY
1. Short title and commencement
2. Interpretation

PART II ESTABLISHMENT OF THE HUMAN RIGHTS COMMISSION OF MALAYSIA
3. Establishment of the Commission
4. Functions and powers of the Commission
5. Members of the Commission and term of office
6. Chairman and Vice-Chairman
7. Meetings of the Commission
8. Remuneration
9. Vacation of office
10. Disqualification
11. Resignation

PART III POWERS OF INQUIRY OF THE COMMISSION
12. Commission may inquire on own motion or on complaint
13. Procedure where infringement is not disclosed or is disclosed
14. Powers relating to inquiries
15. Evidence before the Commission

PART IV STAFF OF THE COMMISSION
16. Appointment of Secretary and the staff
17. Delegation of powers
18. Protection of members, officers and servants of the Commission

PART V GENERAL
19. Funds
20. Application of Act 240
21. Annual Report
22. Regulations
23. Power to make disciplinary regulations


LAWS OF MALAYSIA
ACT 597

HUMAN RIGHTS COMMISSION OF MALAYSIA ACT 1999

An Act to provide for the establishment of the Human Rights Commission of; to set out the powers and functions of such commission for the protection and promotion of human rights in Malaysia; and to provide for matters connected therewith or incidental thereto.
[                                             ]

ENACTED by the Parliament of Malaysia as follows:
PART I
PRELIMINARY

Short title and commencement
1. (1) This Act may be cited as the Human Rights Commission of Malaysia Act 1999.
(2) This Act shall come into operation on a date to be appointed by the Minister by notification in the Gazette

Interpretation
2. In this Act, unless the context otherwise requires---
"Government" means the Government of Malaysia;
"human rights" refers to fundamental liberties as enshrined in Part II of the Federal Constitution;
"minister" means the Minister charged with the responsibility for human rights.
PART II
ESTABLISHMENT OF THE HUMAN RIGHTS
COMMISSION OF MALAYSIA

Establishment of the Commission
3. (1) There is hereby established a Commission which shall be known as the Human Rights Commission of Malaysia (the "Commission).
(2) The Commission shall be a body corporate having perpetual succession and common seal, which may sue and be sued in its name and, subject to and for the purposes of this Act, may enter into contracts and may acquire, purchase, take, hold and enjoy movable and immovable property of every description and may convey, assign, surrender, yield up, charge, mortgage, demise, reassign, transfer or otherwise dispose of, or deal with, any movable or immovable property or any interest therein vested in the Commission upon such term as it deems fit.
(3) The Commission shall have a common seal bear such device as the Commission shall approve and such deal may be broken, changed, altered or made anew as the Commission thinks fit.
(4) The common seal shall be kept in the custody of the Secretary to the Commission or such other person as may be authorised by the Commission and shall be authenticated by the Secretary or such authorised person or by any officer authorised by the Secretary or such authorised person in writing.
(5) All deeds, documents and other instruments purporting to be sealed with the common seal, authenticated as specified in subsection (4) shall until the contrary is proved, be deemed to have been validly execute.
(6) The common seal of the Commission shall be officially and judicially noticed.

Function and powers of the Commission
4. (1) In furtherance of the protection and promotion of human rights in Malaysia, the functions of the Commission shall be---
 (a) to promote awareness and to provide education in relation to the human rights;
 (b) to advise and assist the Government in formulating legislation and administrative directives and procedures and recommend the necessary measures to be taken;
 (c) to recommend to the Government with regard to the subscription or accession of treaties and other international instruments in the field of human rights; and
 (d) to inquire into complaints regarding infringements of human rights referred to in section 12.
(2) For the purpose of discharging its functions, the Commission may exercise any or all of the following powers:
 (a) to promote awareness of human rights and to undertake research by conducting programmes, seminars and workshops and to disseminate and distribute the results of such research;
 (b) to advise the Government and/or the relevant authorities of complaints against such authorities and recommend to the Government and/or such authorities appropriate measures to be taken;
 (c) to study and verify any infringement of human rights in accordance with the provisions of this Act;
 (d) to visit places of detention in accordance with procedures as prescribed by the laws relating to the places of detention and to make necessary recommendations;
 (e) to issues public statements on human rights as and when necessary; and
 (f) to undertake any other appropriate activities as are necessary in accordance with the written laws in force, if any, in relation to such activities.
(3) The visit by the Commission to any place of detention under paragraph (2)(d) shall not be refused by the person in charge of such place of detention if the procedures provided in the laws regulating such places of detention are complied with.
(4) For the purpose of this Act, regard shall be had to the Universal Declaration of Human Rights 1948 to the extent that it is not inconsistent with the Federal Constitution.

Members of the Commission and term of office
5. (1) The Commission shall consist of not more than twenty members.
(2) Members of the Commission shall be appointed by the Yang di-Pertuan Agong, on the recommendation of the Prime Minister.
(3) Members of the Commission shall be appointed from amongst prominent personalities including those from various religious and racial background.
(4) Every member shall hold office for a period of two years and is eligible for reappointment.

Chairman and Vice-Chairman
6. (1) The Yang di-Pertuan Agong shall designate one of the members appointed under section 5 to be the Chairman of the Commission
(2) The Chairman's term of office shall be his period of membership on the Commission.
(3) A Vice-Chairman shall be elected by the members of the Commission from amongst themselves.
(4) Where the Chairman of the Commission is for any reason unable to perform the function of the Chairman, or during any period of vacancy in the office of the Chairman, the Vice-Chairman shall perform the functions of the Chairman.

Meetings of the Commission
7. (1) The Commission of the Commission shall preside at all meetings of the Commission.
(2) If the Chairman is absent from any meeting, the Vice-Chairman of the Commission shall preside at such meeting.
(3) The quorum at all meetings shall be two thirds of the number of members of the Commission.
(4) The members of the Commission shall use their best endeavours to arrive at all decisions of the meeting by consensus failing which the decision by a two thirds majority of the members present shall be required.
(5) The Commission shall determine the conduct of its own proceedings.

Remuneration
8. (1) The Chairman of the Commission shall be paid such remuneration and allowances as the Yang di-Pertuan Agong may determine.
(2) Every member of the Commission shall be paid allowances at such rates as the Yang di-Pertuan Agong may determine.

Vacation of office
9. The office of a member of the Commission shall become vacant---
 (a) upon the death of the member;
 (b) upon the member resigning from such office by letter addressed to Yang di-Pertuan Agong;
 (c) upon the expiration of his term of office; or
 (d) upon the member being removed from office on any of the grounds specified in Section 10.

Disqualification
10. A member of the Commission may be removed from office by the Yang di-Pertuan Agong if---
 (a) the member is adjudged insolvent by a court of competent jurisdiction;
 (b) the Yang di-Pertuan Agong, after consulting a medical officer or a registered medical practitioner, is of the opinion that the member is physically or mentally incapable of continuing his office;
 (c) the member absents himself from three consecutive meetings of the Commission without obtaining leave of the Commission or, in the case of the Chairman , without leave of the Minister;
 (d) the Yang di-Pertuan Agong, on the recommendation of Prime Minister, is of the opinion that the member---
 (i) has engaged in any paid office or employment which conflicts with his duties as a member of Commission;
 (ii) has misbehaved or has conducted himself in such a manner as to bring disrepute to the Commission; or
 (iii) has acted in contravention of this Act and in conflict with his duties as a member of the Commission.

Resignation
11. A member of the Commission may at nay time resign his office by a letter addressed to the Yang di-Pertuan Agong.
PART III
POWERS OF INQUIRY OF THE COMMISSION

Commission may inquire on own motion or on complaint
12. (1) The Commission may, on its own motion or on a complaint made to it by
an aggrieved person or group of persons or a person acting on behalf of an aggrieved person or a group of persons, inquire into an allegation of the infringement of the human rights of such person or group of person.
(2) The Commission shall not inquire into any complaint relating to any allegation of the infringement of human rights which---
 (a) is the subject matter of any proceedings pending in any court, including any appeals; or
 (b) has been finally determined by any court.
(3) If the Commission inquires into an allegation under subsection 12(1) and
during the pendency of such inquiry the allegation becomes the subject matter of any proceedings in any court, the Commission shall immediately cease to do the inquiry.

Procedure where infringement is not disclosed or is disclosed
13. (1) Where an inquiry conducted by the Commission under section 12 does not disclose the infringement of human rights, the Commission shall record that finding and shall record that finding and shall forthwith inform the person making the complaint.
(2) Where an inquiry conducted by the Commission under section 12 discloses the infringement of human rights, the Commission shall have the power to refer the matter, where appropriate, to the relevant authority or person with the necessary recommendations.

Powers relating to inquiries
14. (1) The Commission shall, for the purpose of an inquiry under this Act, have the power---
 (a) to procure and receive all such evidence, written or oral, and to examine all such persons as witnesses, as the Commission thinks necessary or desirable to procure or examine;
 (b) to require that the evidence, whether written or oral, of any witness be given on oath or affirmation being that which could be required of the witness if he were giving evidence in a court of law, and to administer or cause to be administered by an officer authorised in that behalf by the Commission an oath or affirmation to every such witness;
 (c) to summon any person residing in Malaysia to attend any meeting of the Commission to give evidence or produce any document or other thing in his possession, and to examine him as a witness or require him to produce any document or other such witness;
 (d) to admit notwithstanding any of the provisions of the Evidence Act 1950 [Act 56], any evidence, whether written or oral, which may be inadmissible in civil or criminal proceedings; and
 (e) to admit or exclude the public from such inquiry or any part of thereof.
(2) Notwithstanding paragraph (1)(c), where a person summoned is a person under detention under any other written law, such summons shall be issued in accordance with the laws applicable in relation to the place of detention.

Evidence before the Commission
15. (1) A person who gives evidence before the Commission shall, in respect of such evidence, be entitled to all the privileges to which a witness giving evidence before a court of law is entitled in respect of evidence given by him before such court.
(2) No person shall, in respect of any evidence written or oral given by that person to or before the Commission , be liable to any action or proceeding, civil or criminal in any court except when the person is charged with giving or fabricating false evidence.

Appointment of Secretary and the staff
16. (1) The Commission shall appoint a Secretary to the Commission.
(2) The Commission may appoint such other officers and servants as may be necessary to assist the Commission in the discharge of its functions under this Act.

Delegation of powers
17. The Commission may delegate to any officer referred to in subsection 16(2) any of its powers, and the officer to whom such powers are delegated mat exercise those powers subject to the direction of the Commission.

Protection of members, officers and servants of the Commission
18. (1) No action, suit, prosecution or proceeding shall be instituted in any court against the Commission or against any member, officer, or servant of the Commission in respect of any act, neglect or default done or committed by him in such capacity provided that he at the time had carried out his functions in good faith.
(2) Any member, officer or servant of the Commission shall not be required to produce in any court, any document received by, or to disclose to any court, any matter or thing coming to the notice of, the Commission in the course of any inquiry conducted by the Commission under this Act.
(3) No action or proceeding, civil or criminal shall be instituted an any court against any member of the Commission in respect of any report made by the Commission under this Act or against any other person in respect of the publication by such person of a substantially true account of such report.
(4) Chapters IX and X of the Penal Code [Act 574] shall apply to members, officers and servants of the Commission as if references to "public servant" had been replaced with "member, officer or servant of the Commission".
PART V
GENERAL

Funds
19. (1) The Government shall provide the Commission with adequate funds annually to enable the Commission to discharge its function under this Act.
(2) The Commission shall not receive any foreign fund.
(3) Notwithstanding subsection (2), the Commission may receive funds without any conditions from any individual or organisation only for the purpose of promoting awareness of and providing education in relation to human rights as may be approved by the Commission.
(4) The Commission shall cause proper audited accounts to be kept of its income and expenditure, assets and liabilities.
(5) The financial year of the Commission shall be the calendar year
(6) Any expenses incurred by the Commission in any action or proceeding, civil or criminal, brought by or against the Commission before any court shall be paid out of the funds of the Commission and any costs paid to, or recovered by, the Commission in any such action or proceeding, civil or criminal shall be credited to the funds of the Commission
(7) Any expenses incurred by any member, officer or servant of the Commission, in any civil action or proceeding, brought against him in any court in respect of any which is done or purported to be done by him under this Act or on the direction of the commission shall be paid out of funds of the Commission, unless such expenses are recovered by him in such civil action or proceeding.

Application of Act 240
20. The Statutory Bodies (Accounts and Annual Reports) Act 1980 [Act 240] shall apply to the Commission.

Annual report
21. (1) The Commission shall not later than the first meeting of Parliament of the following year, submit an annual report to Parliament of all its activities during the year to which the report relates.
(2) The report shall contain a list of all matters referred to it, and the action taken in respect of them together with the recommendations of the Commission in respect of each matter.
(3) The Commission may, whenever it consider it considers it necessary to do so, submit special reports to Parliament in respect of any particular matter or matters referred to it, and the action taken in respect thereof.

Regulations
22. The minister may make regulations for the purpose of carrying out or giving effect to the provisions of this Act, including for prescribing the procedure to be followed in the conduct of inquiries under this Act.

Power to make disciplinary regulations
23. (1) The Commission may, with the approval of the Minister, make such regulations as it thinks necessary or expedient to provide for the discipline of the officers and servants of the Commission.
(2) Where any disciplinary regulations are made under this section, the Commission shall cause notice of the effect of those regulations to be given in such manner as it thinks necessary for bringing it to the notice of all officers and servants of the Commission who are affected by those regulations and those regulations shall, notwithstanding sections 19 and 20 of the Interpretation Acts 1948 and 1967 [Act 388], have effect as soon as the notice has been given without publication in the Gazette.


Date of Royal Assent ···.27 August 1999
Date of Publication in the Gazette ···.9 September 1999

Human Rights Commission Act 1999 (Fiji)

By admin on March 9, 1999 1:22 PM

 

Part I - PRELIMINARY

1. Short title and commencement
2. Interpretation
3. Act to bind State
4. Application of Act

Part II - HUMAN RIGHTS COMMISSION

5. Incorporation of the Commission
6. Functions of the Commission
7. Powers and duties of the Commission
8. Membership of the Commission
9. Disqualification from office
10. Conditions of appointment
11. Functions of Chairperson
12. Proceedings Commissioner
13. Meetings of the Commission
14. Funds of the Commission
15. Adequacy of funding
16. Staff of the Commission

Part III - UNFAIR DISCRIMINATION

17. Areas where unfair discrimination prohibited
18. Genuine occupational qualification
19. Genuine justification
20. Guidelines on genuine occupational qualification and genuine justification
21. Social justice and affirmative action
22. Victimisation
23. Employment applications and advertisements
24. Liability of employers and principals

Part IV - COMPLAINTS AND INVESTIGATIONS

25. Complaints about contraventions of human rights
26. Complaints about unfair discrimination
27. Discretion whether to investigate
28. Investigation of Commission's own motion
29. Letters from prisoners or patients
30. Investigation procedure
31. Conciliation
32. Power to require information to be provided
33. Disclosure of certain matters not to be required
34. Procedure after investigation
35. Functions of Proceedings Commissioner
36. Proceedings
37. Right of Proceedings Commissioner to appear in High Court
38. Remedies
39. Damages
40. Power to make interim order
41. Substantial merits, evidence and hearings

Part V - MISCELLANEOUS

42. Annual Report
43. Delegation of functions by Commission or Commissioner
44. Nature of delegation
45. Commissioners and employees to maintain secrecy
46. Protection from suit
47. Offences
48. Expenses and allowances
49. Regulations


AN ACT

TO CONFER FUNCTIONS ON THE HUMAN RIGHTS COMMISSION IN ADDITION TO THOSE IN THE CONSTITUTION, TO REGULATE ITS PROCEDURE, AND FOR RELATED MATTERS


ENACTED by the Parliament of the Fiji Islands -

Part I - PRELIMINARY


Short title and commencement
1. - (1) This Act may be cited as the Human Rights Commission Act 1999.
(2) This Act commences on a date or dates to be appointed by the Minister by notice in the Gazette.
(3) The Minister may appoint a different date for the commencement of different provisions.

Interpretation
2. In this Act, unless the context otherwise requires -
"Bill of Rights" means the Bill of Rights contained in Chapter 4 of the Constitution;
"Commission" means the Human Rights Commission which was established by section 42(1) of the Constitution and which has the additional functions conferred by this Act;
"Commissioner" means any member of the Human Rights Commission, except that in Part II it does not include the Chairperson;
"Constitution" means the Constitution Amendment Act 1997;
"department" means a department in the public service;
"employment" includes -

 (a) the employing of an independent contractor;
 (b) the relationship between a person for whom work is done by a contract worker pursuant to a contract and the person who supplies that worker;
 (c) employment in the public service, including the Fiji Police Force, the Fiji Prisons Service and the Republic of the Fiji Military Forces;
 (d) unpaid work;

"functions of the Commission" means the functions conferred on the Commission by section 42(2) of the Constitution, by or under this Act, or by or under any other written law.
"human rights" means the rights embodied in the United Nations Covenants and Conventions on Human Rights and includes the rights and freedoms set out in the Bill of Rights;
"Minister" means the Minister responsible for human rights matters;
"Proceedings Commissioner" means the person designated as such under section 11;
"prohibited ground of discrimination" means a ground set out in section 38(2) of the Constitution.

Act to bind State
3. This Act binds the State.

Application of Act
4. This Act applies both within and outside the Fiji Islands.


Part II - HUMAN RIGHTS COMMISSION


Incorporation of the Commission
5. - (1) The Commission is a body corporate with perpetual succession and a common seal, may enter into contracts, may sue and be sued in its corporate name, has the power to acquire, hold and dispose of property both real and personal and generally may do all such acts and things as are necessary for and incidental to the performance of its functions by or under the Constitution, this Act or any other written law.
(2) Without limiting any other provision of this Act, the Commission has the rights, powers and privileges of a natural person of full age and capacity.

Membership of the Commission
8. In advising the President as to the persons to be appointed as members of the Commission pursuant to section 42 of the Constitution, the Prime Minister must have regard not only to their personal attributes but also to -

 (a) their knowledge or experience of the different aspects of matters likely to come before the Commission; and
 (b) the desirability of having as members of the Commission persons with a diversity of the personal characteristics referred to in subsection 38(2) of the Constitution.


Disqualification from office
9. A person is not qualified to be Commissioner if he or she is, and is deemed to have vacated office if he or she becomes, -

 (a) a member of the House of Representatives or of the Senate;
 (b) a member of a local authority;
 (c) an office-holder of a political party;
 (d) an undischarged bankrupt or insolvent; or
 (e) a person who has been removed from public office under subsection 172(2) of the Constitution.


Conditions of appointment
10. - (1) A Commissioner must not -

 (a) actively engage in politics;
 (b) subject to subsection (2), engage either directly or indirectly in the management or control of a body corporate, or of any other body carrying on business for profit.

(2) Nothing in subsection (1)(b) prevents a Commissioner from -

 (a) holding office in a professional body in relation to which his or her qualifications are relevant; or
 (b) engaging in the direct or indirect management or control of a body corporate, or of any other body carrying on business for profit, if leave for such engagement is granted by the Minister.

(3) The salary of a Commissioner is as prescribed by the Prescription of Salaries Act (Cap.2)

Functions of Chairperson
11. The functions of the Chairperson are -

 (a) to chair meetings of the Commission;
 (b) to be responsible for matters of administration in relation to the Commission;
 (c) to allocate spheres of responsibility among Commissioners;
 (d) any other functions conferred or imposed on the Chairperson by the Constitution, this Act or any other written law.


Proceedings Commissioner
12. - (1) The Chairperson may from time to time in writing designate a Commissioner, or the Chairperson himself or herself, to act as Proceedings Commissioner for the purposes of this Act.
(2) A designation under subsection (1) may operate for a specified period of time and may either be general or specify a particular case or cases or class of cases.
(3) Until a designation under subsection (1) is revoked, it continues in force according to its terms.
(4) A designation under this section is revocable at will and no such designation prevents the exercise of any function by the Commission as a whole.

Meetings of the Commission
13. - (1) Meetings of the Commission are to be held at such times and places as the Commission or the Chairperson from time to time appoints.
(2) At a meeting of the Commission, the quorum necessary for the transaction of business is the Chairperson and one Commissioner.

Funds of the Commission
14. - (1) The funds of the Commission consist of -

 (a) any moneys appropriated by Parliament for the purposes of the Commission and paid to the Commission;
 (b) all other moneys lawfully received by the Commission for its purposes; and
 (c) all accumulations of income derived from any such money.

(2) The accounts of the Commission must be audited by the Auditor General.

Adequacy of funding
15. - The Minister must use his or her best endeavors to ensure that moneys appropriated by the Parliament for the Commission under section 14(1)(a) are adequate -

 (a) for the performance of the functions of the Commission; and
 (b) to maintain the Commission's independence and impartiality.


Staff of the Commission
16. - (1) The Commission must appoint -

 (a) a Director of the Commission; and
 (b) any other employees, including casual and contract employees, needed for the efficient performance of the functions of the Commission.

(2) The Director and other employees of the Commission are subject to the control and direction of the Commission.
(3) The Director and other employees of the Commission hold office on terms and conditions determined by the Commission after consultation with the Public Service Commission.
(4) The Director of the Commission is entitled to such remuneration determined from time to time by the Higher Salaries Commission.


Part III - UNFAIR DISCRIMINATION


Areas where unfair discrimination prohibited
17. - (1) It is unfair discrimination for a person, while involved in any of the areas set out in subsection (3), directly or indirectly to differentiate adversely against or harass any other person by reason of a prohibited ground of discrimination.
(2) Without limiting subsection (1), sexual harassment, for the purposes of this section, constitutes harassment by reason of a prohibited ground of discrimination.
(3) The areas to which subsection (1) applies are-

 (a) the making of an application for employment, or procuring employees for an employer, or procuring employment for other persons;
 (b) employment;
 (c) participation in, or the making of an application for participation in, a partnership;
 (d) the provision of an approval, authorization or qualification that is needed for any trade, calling or profession;
 (e) the provision of training, or facilities or opportunities for training, to help fit a person for any employment;
 (f) subject to subsection (4), membership, or the making of an application for membership, of an employers' organization, an employees' organization or an organization that exists for members of a particular trade, calling or profession;
 (g) the provision of goods, services or facilities, including facilities by way of banking or insurance or for grants, loans, credit or finance;
 (h) access by the public to any place, vehicle, vessel, aircraft or hovercraft which members of the public are entitled or allowed to enter or use;
 (i) the provision of land, housing or other accommodation;
 (j) access to, and participation in, education.

(4) Subsection (3)(f) does not apply to access to membership of a private club or to the provision of services or facilities to member of a private club.

Genuine occupational qualification
18. - (1) It is not unfair discrimination in relation to any of the areas referred to in paragraphs (a) to (e) of section 17(3) if the prohibited ground of discrimination is a genuine occupational qualification.
(2) For the avoidance of doubt, adverse differentiation by reason of a prohibited ground of discrimination is a genuine occupational qualification where a position is for the purposes of an organized religion and the differentiation complies with the doctrines, rules or established customs of the religion.

Genuine justification
19. Adverse differentiation by reason of a prohibited ground of discrimination in relation to any of the areas referred to in paragraphs (f) to (j) of section 17(3) is not unfair discrimination if there is genuine justification for the differentiation.

Guidelines on genuine occupational qualification and genuine justification
20. Without limiting the Commission's power to issue guidelines on any other matter within its jurisdiction on the Commission may, for the avoidance of acts and practices which might amount to unfair discrimination, from time to time issue non-binding guidelines on genuine occupational qualifications and genuine justification.

Social justice and affirmative action
21. A programme, whether provided by the Government or by the private sector, designed to achieve for any groups or categories of persons who are disadvantaged effective equality of access to the areas set out in section 17(3) is not unfair discrimination, provided it complies in other respects with the Bill of Rights.

Victimization
22. It is unfair discrimination for a person while involved in any of the areas set out in section 17(3) to victimize any other person on the ground that that person, or a relative or associate of that person -

 (a) intends to make use of his or her rights under this Act or the Bill of Rights;
 (b) has made use of his or her rights, or promoted the rights of some other person, under this Act or the Bill of Rights;
 (c) has given information or evidence in relation to any complaint, investigation or proceeding under this Act or the Bill of the Rights;
 (d) has declined to do any act which would contravene this Act or the Bill of the Rights; or
 (e) has otherwise done anything under or by reference to this Act or the Bill of Rights.


Employment applications and advertisements
23. - (1) It is unfair discrimination -

 (a) to use or circulate any form of application, or to make any of enquiry or about any person seeking employment, which indicates, or could reasonably be understood as indicating, an intention directly or indirectly to differentiate adversely by reason of a prohibited ground of discrimination; or
 (b) to publish or display, or cause or allow to be published or displayed, any advertisement or notice which indicates, or could reasonably be understood as indicating, an intention to differentiate adversely by reason of a prohibited ground of discrimination.

(2) Subsection (1) does not affect the operation of sections 18, 19 and 21.

Liability of employers and principals
24. - (1) Subject to subsection (3), anything done or omitted by a person as an employee of another person is, for the purposes of this Act, to be treated as done or omitted by the other person as well as by the first - mentioned person, whether or not it was done with that other person's knowledge or approval.
(2) Anything done or omitted by a person as the agent of another person is, for the purposes of this Act, to be treated as done or omitted by that other person as well as by the first-mentioned person, unless it was done or omitted without that other person's express or implied authority, previous or subsequent.
(3) In proceedings under this Act against any person in respect of an act alleged to have been done or omitted by an employee of that person, it is a defence for that person to prove that he or she took all steps reasonably practicable to prevent the employee from doing or omitting the act, or from doing or omitting as an employee of that person acts or omissions of that description.


Part IV - COMPLAINTS AND INVESTIGATIONS


Complaints about contravention of human rights
25. Any person may make a complaint to the Commission, including a representative complaint on behalf of other persons with a similar cause of complaint, about a contravention or alleged contravention of human rights.

Complaints about unlawful discrimination
26. Any person may make a complaint to the Commission, including a representative complaint on behalf of other persons with a similar cause of complaint, about unfair discrimination.

Discretion whether to investigate
27. - (1) The Commission must investigate any complaint received by it, unless, before commencing or during the investigation it decides not to do so because -

 (a) the complaint is not within the jurisdiction of the Commission;
 (b) the complaint is trivial, frivolous, vexatious or not made in good faith;
 (c) the complainant, or a person acting on his or her behalf, has brought proceedings relating to the same matter in a court or tribunal;
 (d) the complainant has available another remedy or channel of complaint that the complainant could reasonably be expected to use;
 (e) the complainant has not a sufficient interest in the complaint;
 (f) the person alleged to be aggrieved does not desire that the complaint be investigated;
 (g) the complaint has been delayed too long to justify an investigation;
 (h) the Commission has before it matters more worthy of its attention; or
 (i) the resources of the Commission are insufficient for adequate investigation,

and may defer or discontinue an investigation for any of these reasons.
(2) No decision by the Commission to decline, defer or discontinue an investigation into a complaint affects the Commission's power to inquire generally into a matter of its own initiative.

Investigation of Commission's own motion
28. The Commission may investigate of its own motion any act, omission, practice, requirement or condition which is or appears to be unfair discrimination or a contravention of human rights or which has been referred to it by the High Court.

Letters from prisoners or patients
29. Notwithstanding any written law to the contrary (other than the Constitution), a letter written by -

 (a) a person in custody; or
 (b) a patient in a hospital,

and addressed to the Commission must be forwarded immediately, unopened and unaltered, to the Commission by the person in charge of the place or institution where the writer of the letter is detained or in which he or she is a patient.

Investigation procedure
30. - (1) Before investigating any matter within its jurisdiction, the Commission must inform -

 (a) the complainant (if any);
 (b) the person alleged to be aggrieved, if not the complainant;
 (c) the person to whom the investigation relates; and
 (d) in relation to an investigation relating to a department the person holding or performing the duties of the office of Secretary of the department, of the Commission's intention to make the investigation.

(2) An investigation under this Act must be conducted in private.
(3) The Commission may hear or obtain information from any person whom the Commission considers can assist in the investigation and may make whatever enquiries it thinks fit.
(4) Nothing in this Act requires the Commission to hold any hearing and no person is entitled as of right to be heard by the Commission.
(5) The Commission must not in any report make any comment that is adverse to or derogatory of any person to whom a complaint relates without -

 (a) providing the person with a reasonable opportunity of being heard; and
 (b) fairly setting out in the report the person's defence (if any).

(6) In conducting an investigation, the Commission is not bound by the strict rules of evidence or procedure, but must act fairly at all times.

Conciliation
31. - (1) The Commission may, before commencing an investigation, or during or after an investigation, call a conciliation conference of the parties to the conciliation by formally requesting, by post, telephone, facsimile, electronic mail or otherwise, the attendance of each party at a time and place specified.
(2) If a person fails to comply with a request made under subsection (1) the Commission may issue a summons requiring the person to attend a conciliation conference at a time and place specified in the summons.
(3) The objectives of a conciliation conference are to identify the matters at issue between the parties and to use the best endeavors of the Commission to secure a settlement between the parties on the matters at issue.

Power to require information to be provided
32. - (1) Subject to this section and to section 33, for the purposes of an investigation a Commissioner may, by notice in writing, require any person to furnish any information, or to produce any document, record or thing in the possession or under the control of that person that is in the opinion of the Commissioner relevant to the investigation.
(2) If a Commissioner has reason to believe that a person is able to give information relevant to an investigation, the Commissioner may, by notice in writing, require the person to attend before him or her, on a date and at the time and place specified in the notice, to answer questions relevant to the investigation.
(3) For the purposes of an investigation the Commission and the Commissioner have the same powers as a judge of the High Court in respect of the attendance and examination of witnesses and the production of documents.
(4) Notwithstanding anything in any other written law (other than the Constitution), a person is not excused from giving information, producing a document, record or thing or answering a question when required to do so pursuant to this Act, if the only ground for refusal is that the giving of the information, the production of the document, record or thing or the answer to the question-

 (a) would contravene a provision of a written law, would be contrary to the public interest, or might tend to incriminate the person or make him or her liable to a penalty; or
 (b) would disclose legal advice furnished to a Minister or a department,

but the information, document, record, thing or answer is not admissible in evidence against the person in proceedings other than proceedings for an offence against section 47.
(5) Subject to section 33,a person is not excused from giving information, producing a document, record or thing or answering a question when required to do so pursuant to this Act on the ground that -

 (a) a claim of State privilege could be made in relation to the material concerned; or
 (b) the material is commercially sensitive.

(6) Except on the trial of any person for perjury in respect of his or her sworn or affirmed testimony, or proceedings for an offence against section 47, no statement made or answer given by that or any other person in the course of any inquiry by or proceedings before the Commission or a Commissioner is admissible in evidence against any person in any court or at any inquiry or other proceedings, and no evidence in respect of proceedings before the Commission or a Commissioner must be given against any person.

Disclosure of certain matters not to be required
33. - (1) If the Attorney General certifies that the disclosure of information concerning a specified matter (including the furnishing of information in answer to a question or the disclosure to the Commission or a Commissioner of the contents of a specified document or record or the production of a specified thing) would be contrary to the public interest because it would -

 (a) seriously harm the commercial interests of any person or body;
 (b) prejudice the security, defence or international relations of the State; or
 (c) involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet,

the Commission or a Commissioner cannot require a person to give information concerning the matter, to answer the questions concerning the matter or to produce the document, record or thing.
(2) The Commission must withhold publication of any written material which comes into its possession in the course of an investigation and which is the subject of a certificate by the Attorney General under subsection (1).

Procedure after investigation
34. - (1) After completing an investigation, the Commission must inform the parties of the result of the investigation and whether, in its opinion-

 (a) the complaint does not have substance, or cannot be established to have substance or, in relation to an investigation of the Commission's own motion, that the matter ought not to be proceeded with; or
 (b) the complaint has substance or, in relation to an investigation of the Commission's own motion, that the matter ought to be proceeded with.

(2) If the Commission is of the opinion that a complaint does not have substance, or cannot be established to have substance, but considers nonetheless that it may be possible to reach a settlement between any of the parties concerned, the Commission may act as a conciliator and use its best endeavors to reach a settlement of the complaint.
(3) If the Commission is of the opinion that a complaint does not have substance, or cannot be established to have substance, or if the Commission pursuant to section 27(1) decides not to investigate, or investigate further, a complaint, it must inform the complainant of the complainant's right to bring civil proceedings before the High Court-

 (a) in relation to a complaint of unfair discrimination - pursuant to section 36 of this Act;
 (b) in relation to a complaint of contravention of the Bill of Rights - pursuant to section 41 of the Constitution.

(4) If the Commission has investigated a complaint and is of the opinion that the complaint has substance, it must act as conciliator in relation to the complaint and use its best endeavors to effect a settlement in relation to the complaint.
(5) For the purposes of this section, "settlement" includes a satisfactory assurance by the person to whom a complaint or investigation relates against repetition of the conduct that was the subject - matter of the complaint or the investigation or against conduct of a similar kind.
(6) Whether or not it takes any of the actions referred to in subsection (2), (3) and (4), the Commission may -

 (a) advise the parties of their respective rights, including, in relation to a complaint of contravention of the Bill of Rights, the complainant's right to bring proceedings in the High Court under section 41 of the Constitution;
 (b) refer to the complaint and, if it considers appropriate, the result of the investigation to another competent authority;
 (c) make recommendations to the competent authority, proposing amendments to or reform of any laws, regulations or administrative provisions or practices which have created the difficulties or hardship encountered by the complainant or the aggrieved person;
 (d) recommend to the relevant authority, in respect of a person who in the opinion of the Commission has contravened human rights, either prosecution of the person or the taking of other action, and the authority must consider


Functions of Proceedings Commissioner
35. - (1) The functions of the Proceedings Commissioner include -

 (a) in relation to a complaint or an investigation of the Commission's own motion - deciding whether an application should be made for an order under section 40 and, if so, making the application;
 (b) in relation to a complaint resulting from a failure by a party to observe the terms of a settlement on a previous occasion - deciding whether to institute proceedings against the party and, if so, instituting the proceedings;
 (c) in a relation to a complaint or an investigation of the Commission's own motion, if it appears to the Proceedings Commissioner that a settlement has not been reached and that no action or further action by the Commission is likely to facilitate a settlement - deciding whether to institute proceedings against the person against whom the complaint was made or to whom the investigation related, and if so, instituting the proceedings.

(2) The Proceedings Commissioner must not institute proceedings against a person referred to in paragraph (b) or (c) of subsection (1) unless the Commissioner has given the person an opportunity to be heard.

Proceedings
36. - (1) Civil proceedings in the High Court lie at the suit of the Proceedings Commissioner against a person referred to in paragraph (b) or (c) of section 35 (1) for unfair discrimination or a contravention of the Bill of Rights.
(2) The Proceedings Commissioner may, under subsection (1), bring proceedings on behalf of a class of persons if the Commissioner considers that a person referred to in paragraph (b) or (c) of section 35 (1) has engaged in unfair discrimination which affects that class or has contravened the Bill of Rights in relation to that class.
(3) If proceedings are commenced by the Proceedings Commissioner under subsection (1), neither the complainant (if any) nor the aggrieved person (if not the complainant) may be an original party to the proceedings, or, unless the High Court so orders, join or be joined in the proceedings.
(4) Notwithstanding subsection (1), the complainant (if any) or the aggrieved person (if not the complainant) may bring proceedings before the High Court if -

 (a) the Commission is of the opinion that the complaint does not have substance or cannot be established to have substance or that the matter ought not to be proceeded with;
 (b) the Commission pursuant to section 27(1) decides not to investigate, or to investigate further, a complaint; or
 (c) the Proceedings Commissioner would be entitled to bring proceedings, but -
 (i) agrees to the complainant, in the case of a complaint, or an aggrieved person, in relation to an investigation of the Commission's own motion, bringing proceedings; or
 (ii) decides not to take proceedings.

(5) Nothing in this section limits the right of any person to apply to the High Court for redress for a contravention of the Bill of Rights under section 41 of the Constitution.

Right of Proceedings Commissioner to appear in High Court
37. - (1) The Proceedings Commissioner may appear and be heard in the High Court, the Court of Appeal or the Supreme Court in relation to any proceedings under section 36, whether or not the Proceedings Commissioner is or was a party to the proceedings.
(2) With leave of the court, tribunal or arbitrator, the Proceedings Commissioner may appear and be heard in relation to any proceedings before a court, tribunal or arbitrator in which human rights are in issue.
(3) If the Proceedings Commissioner appears before any court, tribunal or arbitrator, he or she may, unless the rules of procedure of the court, tribunal or arbitrator otherwise provide -

 (a) appear in person or by a legal practitioner;
 (b) adduce evidence and cross-examine witnesses, unless the proceedings are by way of appeal,


Remedies
38. - (1) In any proceedings before the High Court brought under section 36 by the Proceedings Commissioner, a complainant or an aggrieved person, the plaintiff may seek any or all of the remedies described in subsection (2) of this section.
(2) If in any proceedings as mentioned in subsection (1) the High Court is satisfied on the balance of probabilities that the defendant has engaged in unfair discrimination or has contravened the Bill of Rights, it may grant one or more of the following remedies -

 (a) a declaration that the defendant has engaged in unfair discrimination or contravened the Bill of Rights;
 (b) an order restraining the defendant from continuing or repeating the conduct complained of or causing or permitting others to engage in conduct of the same kind or of any similar kind specified in the order;
 (c) damages
 (d) an order that the defendant perform any act specified in the order with a view to redressing any loss or damage suffered by the complainant or the aggrieved person or to preventing conduct of a similar kind in the future;
 (e) a declaration that a contract requiring performance of anything that constitutes unfair discrimination or contravenes the Bill of Rights is void and unenforceable;
 (f) such other relief as the High Court thinks fit.

(3) It is not a defence to proceedings under this section that the unfair discrimination or contravention of the Bill of Rights was unintentional or without negligence on the part of the defendant, but the High Court must take the conduct of the defendant into account in deciding what remedy, if any, to grant.
(4) In any proceedings under section 36, the High Court may make such award as to costs as it thinks fit, whether or not it grants any other remedy.
(5) If the Proceedings Commissioner is a party to proceedings, any costs in the proceedings awarded against the Commissioner under subsection (4) must be paid by the Commission and the Commission is not entitled to be indemnified by the complainant or, as the case may be, the aggrieved person for such costs.

Damages
39. - (1) In proceedings under section 36 for unfair discrimination or a contravention of the Bill of Rights, the High Court may award damages against the defendant in respect of any one or more of the following -

 (a) pecuniary loss suffered or expense incurred by the complainant or the aggrieved person as a result of the conduct complained of;
 (b) expenses reasonably incurred by the complainant or the aggrieved person in seeking redress for the conduct complained of;
 (c) loss of any benefit, whether or not of a monetary kind, which the complainant or the aggrieved person might reasonably have been expected to obtain but for the conduct complained of;
 (d) humiliation, loss of dignity and injury to feelings of the complainant or the aggrieved person.

(2) Subject to subsection (3), the Commission must pay any damages recovered by the Proceedings Commissioner under this section to the complainant or the aggrieved person on whose behalf the proceedings were brought.
(3) If the complainant or the aggrieved person is an unmarried minor or a person of unsound mind the Proceedings Commissioner may, in his or her discretion, pay the damages to the Public Trustee or to any person or trustee corporation acting as the trustee of the property of that person.

Power to make interim order
40. - (1) In respect of any matter which is the subject of an investigation by the Commission and in which the High Court has or may have jurisdiction, a judge may make an interim order if he or she is satisfied that it is necessary in the interests of justice to make the order to preserve the position of the parties pending the result of the investigation and the final determination of any proceedings resulting from the investigation.
(2) An application for an interim order under subsection (1) may be made by the Proceedings Commissioner or, in a case to which section 36(4) applies, the complainant or the aggrieved person.
(3) A copy of an application under subsection (3) must be served on the defendant,who must be given an opportunity to be heard before a decision on the application is made.
(4) If an interim order has been made, the defendant may appeal to the Court of Appeal to rescind or vary the order, unless the order was made with the defendant's consent.

Substantial merits, evidence and hearings
41. In any proceedings under this Act before the High Court, the court -

 (a) must act according to equity, good conscience and the substantial merits of the case, without regard to technicalities;
 (b) may receive as evidence any statement, document, information or matter that will or might in the court's opinion assist it to deal effectively with the matters before it, whether or not it would be admissible but for this section;
 (c) may, if it considers it desirable to do so -
 (i) order that any hearing held by it be heard in private, either in whole or part;
 (ii) make an order prohibiting the publication of any report or account of the evidence or other proceedings before it (whether heard in public or in private) either in whole or in part;
 (iii) make an order prohibiting the publication of any book or document produced at the hearing.



Part V - MISCELLANEOUS


Annual Report
42. - (1) Without limiting the right of the Commission to report at any other time, the Commission must, within 3 months after the end of each financial year, furnish to the President a report on the exercise of its functions under the Constitution and this Act during the year, and must submit a copy to each House of the Parliament for laying before that House and for consideration by the relevant committee (if any) of that House.
(2) Following the tabling of the Annual Report in both Houses of the Parliament, the Commission must hold a public meeting at a time and place it fixes to discuss the contents of the Annual Report and the carrying out of its functions during the year.

Delegation of functions by Commission or Commissioner
43. - (1) The Commission may from time to time by writing under the hand of the Chairperson, delegate to a Commissioner any of the functions or powers of the Commission under the Constitution or this Act, except the functions set out in section 42(2) of the Constitution and section 6 of this Act, this power of delegation, and the power to make any report under this Act.
(2) With the prior written approval of the Minister, any Commissioner may from time to time, by writing under his or her hand, delegate to any employee of the Commission any of the Commissioner's powers under this Act, except this power of delegation and the power to make any report under this Act.

Nature of delegation
44. - (1) The following provisions apply to a delegation under section 43 -

 (a) it may made to a specified person or to the holder for the time being of a specified office or to the holders of offices of a specified class.
 (b) It may be made subject to such restrictions and conditions as the Commissioner or Commissioner thinks fit, and may be made either generally or in relation to any particular case or class of cases;
 (c) It is revocable at will and no such delegation prevents the exercise of any function by the Commission or Commissioner, as the case may be;
 (d) Until revoked, it continues in force according to its terms and if, in the case of a delegation by a Commissioner, the Commissioner by whom it was made ceases to hold office, it continues to have effect as if made by his or her successor.

(2) A person purporting to exercise any power of the Commission or of a Commissioner by virtue of a delegation under section 43 must, when required to do so, produce evidence of his or her authority to exercise the power.

Commissioners and employees to maintain secrecy
45. - (1) Subject to this section, a Commissioner or any employee of the Commission who, either directly or indirectly and either while remaining or after ceasing to be a Commissioner or employee, makes a record of, or divulges or communicates to any person, any information acquired in the performance of his or her duties under this Act, commits an offence and is liable on conviction to a fine of $1000.
(2) Subsection (1) does not prevent a Commissioner or an employee of the Commission from making a record of, or divulging or communicating to any person, information acquired by the Commissioner or the employee in the performance of his or her duties for purposes connected with the performance of the functions of the Commission under the Constitution or this Act.
(3) Subsection (1) does not prevent the Commission from disclosing in a report made under this Act any matter which in the Commission's opinion ought to be disclosed in the course of setting out the grounds for the conclusions and recommendations contained in the report.
(4) Subsection (1) does not prevent the Commission from disclosing information or making a statement to the public or a section of the public with respect to the performance of the functions of the Commission.
(5) The Commission must not, in disclosing information or making a statement under subsection (4), disclose the name of a complainant or aggrieved person or any other information that would enable the complainant or aggrieved person to be identified unless it is fair and reasonable in all the circumstances to do so.

Protection from suit
46. Neither the Commission, a Commissioner nor an employee of the Commission is liable to an action, suit or proceeding for or in relation to an act done or omitted to be done in good faith in exercise or purported exercise of a power or authority conferred by the Constitution or this Act.

Offences
47. - (1) A person who refuses or fails, without reasonable excuse -

 (a) to attend before the Commission or a Commissioner;
 (b) to be sworn or make an affirmation;
 (c) to furnish information;
 (d) to produce a document, record or thing; or
 (e) to answer a question,

when required to do so pursuant to this Act, commits an offence and is liable on conviction to a fine of $1,000 and to imprisonment for 6 months.
(2) A person who -

 (a) without reasonable excuse, willfully obstructs, hinders or resists the Commission, a Commissioner or an employee of the Commission in the performance of their functions; or
 (b) furnishes information or makes a statement to the Commission, a Commissioner or an employee of the Commission knowing that it is false or misleading in a material manner,

commits an offence and is liable on conviction to a fine of $1,000 and to imprisonment for 12 months.

Expenses and allowances
48. The Commission may, in its discretion, pay to -

 (a) any person by whom a complaint has been made; or
 (b) any person who attends or who furnishes information for the purposes of an investigation,

such amounts in respect of expenses properly incurred or by way of allowances or compensation for loss of time, as are payable under the Criminal Procedure Code to a witness attending at a trial or an inquiry at the High Court.

Regulations
49. The Minister may make regulations, not inconsistent with this Act, prescribing all matters that are required or permitted by this Act to be prescribed or that are convenient to be prescribed for carrying out or giving effect to this Act.


Passed by the House of Representatives this 3rd day of February 1999.
Passed by the Senate this 9th day of March 1999.

Human Rights Commission Act, 2053 (1997) (Nepal)

By admin on January 8, 1997 1:35 PM

Human Rights Commission Act, 2053 (1997)


Preamble :
Whereas, it is expedient to establish an independent and autonomous National Human Rights Commission for the effective enforcement as well as protection and promotion of Human Rights conferred by the Constitution and other prevailing laws;
Be it enacted by Parliament in the twenty-fifth year of the reign of His Majesty the King Birendra Bir Bikram Shah Dev.
Chapter - 1
Preliminary

1. Short Title and Commencement: (1) This Act may be called "The Human Rights Commission Act, 2053 (1997)".
(2) This Act shall come into force at once.

2. Definitions: In this Act, unless the subject or context otherwise requires:
 a) "Commission" means the National Human Rights Commission constituted under Section 3.
 b) "Constitution" means the Constitution of the Kingdom of Nepal, 2047 (1990).
 c) "Chairperson" means the Chairperson of the Commission and this term also includes the Member of the Commission who acts as an Acting Chairperson pursuant to Section 20.
 d) "Member" means the Member of the Commission and this term also includes the Chairperson.
 e) "Secretary" means the Secretary of the Commission.
 f) "Human Rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution and other prevailing laws and such other rights as are embodied in the international treaties relating to human rights to which Nepal is a party.
 g) "Prescribed" or "As prescribed" means prescribed or as prescribed in the Rules framed under this Act.


Chapter - 2
Provisions relating to the constitution of the Commission and terms of service of Members

3. Establishment and constitution of the Commission: (1) The National Human Rights Commission comprising the following Chairperson and Members shall be established and constituted:
 (a) One person from amongst the retired Chief Justices or Judges of the Supreme Court - Chairperson
 (b) Three persons from amongst persons who have rendered an outstanding contribution in the field of law, human rights, social work or communications and journalism, ensuring representation from all the fields to the extent possible - Members
 (c) One person from amongst the retired persons who have served in any office of constitutional bodies or who have served in the capacity of special class officer of His Majesty's Government - Member
(2) In addition to the qualification referred to in sub-section (1) a person eligible for appointment as the Chairperson or Member must possess the following qualifications:
 (a) Be a citizen of Nepal
 (b) Have attained forty years of age
 (c) Not convicted by a court of any criminal offence involving moral turpitude.
(3) The person once appointed as Member of the Commission shall not be eligible for appointment to any other government service.
(4) The Chairperson or Member of the Commission shall not be entitled to carry on professional business as long as he/she holds office in the Commission.
(5) The Commission shall be a body with perpetual succession.
(6) The Commission shall have a separate seal of its own.
(7) The Commission may, like an individual, acquire, use, sell, dispose of or otherwise deal with movable, immovable property.
(8) The Commission may, like an individual, sue and be sued in its own name.

4. Appointment of Chairperson and Member :
(1) His Majesty the King shall, upon the recommendation of the Recommendation Committee constituted pursuant to sub-section (2), appoint the Chairperson and Members of the Commission.
(2) For the purpose of recommending the appointment of the members of the Commission there shall be a Recommendation Committee consisting of the following office holders:
 a. The Prime Minister Chairperson
 b. The Chief Justice Member
 c. The Leader of the Opposition in
the House of Representative		 Member
(3) The Committee constituted pursuant to sub-section (2) may regulate its own working procedures.
(4) It shall be the responsibility of the Chief Secretary of His Majesty's Government to make necessary arrangements for holding the meetings of the committee mentioned in sub-section (2).

5. Terms of Office of Members: The term of office of the Members shall be five years from the date of appointment. They shall be eligible for reappointment.

6. Vacancy of Office: The office of a Member shall be vacant in the following circumstances:-
 (a) In case of death ,
 (b) In case of resignation accepted by His Majesty the King,
 (c) In case of Completion of the term of office under section 5,
 (d) If the Human Rights Committee of the House of Representatives, by a two-thirds majority of the meeting attended by at least two-third members of its total members, adopts a resolution that any Member of the Commission is not fit to hold office by reasons of incompetence or misbehavior, and the resolution so adopted is approved by the House of Representatives.
Provided that a Member so charged shall be given a reasonable opportunity to defend himself /herself in the Human Rights Committee of the House of Representatives.

7. Conditions of Service of Members: The remuneration, facilities and other conditions of service of the Chairperson and Members of the Commission shall be as prescribed, provided that such remuneration and facilities shall not be less than the remuneration and facilities to which the Judges of the Supreme Court are entitled.

8. Meetings of the Commission:
(1) The meetings of the Commission shall be held on such date and in such place as the Chairperson decides.
(2) The Commission shall normally meet twice a month.
(3) If three Members are present in a meeting of the Commission, it shall be deemed to constitute the quorum for the meeting.
(4) The meetings of the Commission shall be chaired by the Chairperson and in the absence of the Chairperson the meeting shall be chaired by the senior most Member.
(5) The decisions of the Commission shall be made by the majority of the Members. In the event of a tie, the Chairperson shall exercise the casting vote.
(6) No act or proceeding of the Commission shall be deemed invalid merely on the ground of vacancy of the post of a Member.
(7) The Commission may itself regulate other procedures relating to its meetings.
Chapter - 3
Provisions Relating to the Functions and Procedures of the Commission

9. Functions and Duties of the Commission:
(1) It shall be the primary responsibility of the Commission to protect and promote the human rights,
(2) In order to perform the responsibility mentioned in sub-section (1), the Commission may carry out the following functions:
 (a) Conduct inquiries and investigations on the following matters, upon a petition or complaint presented to the Commission by the victim himself /herself or any person on his /her behalf or upon information received from any source, or on its own initiative:-
 (1) Violation of human rights and abetment thereof,
 (2) Carelessness or negligence in the prevention of violations of the human rights by any person, organization or authority concerned.
 (b) Inquiries in or investigations on the matters mentioned in clause (a) conducted by the Commission itself or caused to be conducted through any person or an authority or employee of HMG in accordance with the directions of the Commission and submit the report to the Commission,
 (c) Order a petition or a complaint to be filed by giving reasons therefor if the Commission finds such a petition, complaint or information has no basis or is of such a nature that it cannot be enforced by the courts of Nepal,
 (d) Inquire into a matter with the permission of the court in respect of any claim on violations of human rights which is sub-judice in the court,
 (e) Visit, inspect and observe any authority, jail or any organization under His Majesty's Government and to submit necessary recommendations to His Majesty's Government on the reform to be made on the functions, procedures and physical facilities which may be necessary for such an organization for the protection of human rights,
 (f) Review the provisions on safeguards provided by the Constitution and other prevailing law for the enforcement of human rights and submit necessary recommendations for the effective implementation of such provisions,
 (g) Study international treaties and instruments on human rights and submit the necessary and appropriate recommendations to His Majesty's Government for effective implementation of the related provisions,
 (h) Undertake or cause to be undertaken research in the field of human rights,
 (i) Publicize and propagate human rights education among the various sections of society through various seminars, symposia, conferences and also build consciousness and awareness about the guarantees bestowed by law for the protection of human rights,
 (j) To encourage the functioning and efforts of institutions working in the non-governmental sector,
 (k) Evaluate the existing human rights situation of the country,
 (l) Make necessary recommendations to His Majesty's Government regarding reports to be furnished by Nepal pursuant to the provisions of international treaties on human rights and
 (m) Carry out such activities, as it may deem necessary and appropriate for the enforcement, promotion and protection of human rights.
(3) On the matter of Nepal's obligation to furnish reports under international treaties on human rights, His Majesty's Government shall furnish reports upon receiving the opinion of the Commission thereon.

10. Matters Not Subject to the Jurisdiction of the Commission: The Commission shall have no power to inquire into or institute any other proceeding on any of the following matters pursuant to this Act:-
 (a) Any matter within the jurisdiction of the Military Act, Provided that nothing will bar the Commission from carrying out the functions mentioned in this Act on a matter in respect of which the court may exercise its jurisdiction pursuant to the Constitution and the prevailing law.
 (b) Any matter certified by the Chief Secretary of His Majesty's Government that it may have adverse effect on the treaty concluded between His Majesty's Government and any foreign government or international or inter-governmental organization, or on the security of the Kingdom of Nepal.
 (c) Any matter certified by the Attorney General that it may have adverse effect on the conduct of an inquiry and investigation being carried out in accordance with the law for the purpose of identifying the crime or the criminal.

11. Powers of the Commission relating to Inquiries:-
(1) The Commission shall, while inquiring into the petition or complaints or reports within its jurisdiction, have the same powers as a court may have under the prevailing laws of Nepal in respect of the following matters:-
 (a) Requiring any person to appear before the Commission for recording his/her statement and information within his knowledge,
 (b) Summoning witnesses and examining them,
 (c) Ordering the production of any document,
 (d) Requisiting any document or copy thereof from any governmental or public office or the court,
 (e) Examining evidence,
 (f) Carrying one or causing to be done an on-the-spot inspection, ordering the production of any physical evidence.
(2) The Commission may prescribe such limitation of time, as it may think fit for attendance of any person, production of any document or evidence pursuant to sub-section (1).
(3) In case, the Commission has the reasonable grounds to believe that any thing or document relating to the subject matter of its inquiry or investigation is in possession of any person or is in any place, it may, in pursuant to the existing law of Nepal, search or cause to be searched such person or place and seize or cause to be seized any such material or take or cause to be taken extracts or copies or duplicates of such document.
(4) The Commission may, if it thinks necessary, conduct a public hearing during its inquiry about any incident.
(5) The Commission may send along with special stricture to His Majesty's Government or authorized body or authority to take action against a person who does not send the documents or necessary evidences required by the Commission in connection with an inquiry or who does not cooperate in carrying out the Commission's functions or a person who does not appear before the Commission on being summoned.
(6) The Commission may, as required constitute committees or sub-committees to carry out its functions required to be performed by it under this Act, and the functions, duties and powers of such committees or sub-committees and allowances and facilities to be received by the members of such committees or sub-committees shall be as prescribed by the Commission.
(7) The Commission may, as required, avail itself of the services of experts or specialized agencies on a concerned subject. The service, condition and facilities of the experts rendering such a service shall be as prescribed by the Commission.

12. Complaints and Proceedings Relating to Violation of Human Rights : The procedures for filing complaints about violations of human rights and other proceedings relating thereto shall be as prescribed.

13. Process for Implementation of Decisions of the Commission :
(1) If, during proceedings by the Commission on the complaints and petitions filed within its jurisdiction pursuant to Section 11, the accused is found guilty, it shall write to the organization or authority concerned to take necessary action against the guilty person.
(2) While writing pursuant to sub-section (1), if the Commission thinks it necessary to provide the victims with necessary compensation it shall also mention the nature of compensation in its recommendation.
(3) The basis and procedures to be followed for allowing compensation pursuant to sub-section (2) shall be as prescribed.
(4) Upon receiving written recommendation for action pursuant to sub-sections (1) and (2), the concerned body or authority shall take action as required by the Commission, or if such action cannot be taken, having set out the reasons therefor, the concerned body or authority shall send its report of the action taken within three months from the date of receipt of the intimation from the Commission.

14. To Submit Reports :
(1) Each year the Commission shall prepare its annual report on its activities and submit it to His Majesty the King and His Majesty the King shall cause such report to be laid before the Parliament.
(2) Each year the Commission shall publish details of the activities carried out by it for the purpose of public information, provided that if the Commission deems it necessary, it may publish these details at any time.

15. Financial Management :
(1) The Commission may obtain such means and resources from different agencies by way of grants as are required for the performance of its functions.
(2) The Commission may receive financial assistance with a view to enable itself to carry out the functions mentioned in Section 9.
(3) The amount of financial assistance received pursuant to sub-section (2) shall be expended in accordance with the terms agreed upon between the donor agency and the Commission.
(4) The Commission shall maintain accounts of its income and expenditure and other relevant records in accordance with the prevailing law.
(5) The accounts of the Commission shall be audited by the Auditor General.
(6) Other matters concerning the financial management of the Commission shall be as prescribed.
Chapter - 4
Miscellaneous

16. Office of the Commission: The Central Office of the Commission shall be located in the Kathmandu Valley. The Commission may when necessary set up branch offices in different areas in the Kingdom of Nepal.

17. Secretary:
(1) There shall be appointed a Secretary in the Commission.
(2) The Secretary shall be appointed by His Majesty on the recommendation of the Commission. The terms of office, service, conditions and other facilities of the Secretary shall be equivalent to that of the Secretary of His Majesty's Government.

18. Employees of the Commission :
(1) The Commission may appoint employees as may be required to carry out its functions, and the service, terms and facilities of the employees so appointed shall be as prescribed.
(2) Notwithstanding anything contained in sub-section (1), the Commission may request His Majesty's Government to provide employees required by it. It shall be the duty of His Majesty's Government to so provide.
(3) In case the Commission requests any government office for assistance in the performance of its functions, the office so requested must provide the required assistance.

19. Delegation of Powers: The Commission may delegate any of the powers conferred on it under this Act to the Chairperson or any Member or employee of the Commission or to an officer of His Majesty's Government or to the committee or sub-committee that may be constituted under this Act or to any person.

20. Acting Chairperson: In the event of vacancy of the Chairperson, His Majesty may authorize the senior Member of the Commission to act as Acting Chairperson until a new Chairperson is appointed.

21. Oath: Before assuming office, the Chairperson shall take an oath before His Majesty the King , similarly the Members will take the Oath before the Chairperson in the manner as specified in the Schedule of this Act.

22. Communication with His Majesty's Government: All communications of the Commission to His Majesty's Government shall be channeled through the Secretariat of the Council of Ministries.

23. Framing of Rules: The Commission may, in order to carry out the objectives of this Act, frame necessary rules. While doing so the Commission may consult His Majesty's Government. Provided that in making rules relating to remuneration and facilities, His Majesty's Government shall be required to be consulted.

24. Saving: No suit or legal proceeding shall be instituted against the Commission or the Chairperson or a Member or an employee or any person designated by the Commission in respect of any act done or intended to be done in good faith pursuant to this Act or rules framed under this Act.
Schedule
(Relating to Section 21)
Oath


I, ·········· swear in the name of god/solemnly affirm that I will bear loyalty to the Constitution of the Kingdom of Nepal, 1990 and faithfully discharge the responsibility and duty of the office of Chairperson/Member assumed by me, without fear, favour, partiality, ill-will or greed and that I will not communicate or divulge any matter which becomes known to me in the course of discharge of my duties in any circumstance whether I shall be holding office or not, except in pursuance of the prevailing law.

Date of Royal Seal :- 2053-9-24-4 (8 January, 1997)

Presidential Decree No. 50, Year 1993, The National Commission of Human Rights (Indonesia)

By admin on December 22, 1993 1:28 PM

 

PRESIDENT
OF THE REPUBLIC OF INDONESIA

PRESIDENTIAL DECREE
NO. 50 YEAR 1993
THE NATIONAL COMMISSION OF HUMAN RIGHTS

THE PRESIDENT OF THE REPUBLIC OF INDONESIA


Considering :
a. That indeed human being, as a creature of God, lives in a society, nation and state, and is naturally endowed with inalienable rights so that he can develop his personal self, and role and contribution to his society, country and the world;
b. That the Indonesian nation as part of the international community of nations respects the United Nations Charter and the Universal Declaration of Human Rights;
c. That in order to promote and protect these human rights, and in accordance with the state principles based on the rule of law, their implementation needs to be enhanced and strengthened;
d. That in order to fulfil the objectives in points a, b, and c, it is deemed necessary to establish a National Commission on Human Rights;


Mindful of : Article 4 verse (1) 1945 Constitution

                   HAS DECIDED TO PROMULGATE
THE PRESIDENTIAL DECREE
ON
THE NATIONAL COMMISSION ON HUMAN RIGHT

CHAPTER I
NAMA, PHILOSOPHICAL BASIS, NATURE AND
OBJECTIVES
Article 1
In order to enhance the implementation of human right in Indonesia, a Commission, national in nature, which shall be called the national Commission on Human Rights, hereinafter referred to as the national Commission, is hereby established.

Article 2
The philosophical basis of the National Commission shall be the Pancasila.

Article 3
The National Commission shall be an independent body.

Article 4
The National Commission shall have the following objectives;
 a. To help develop a national condition which conductive to the implementation of human rights in conformity with the State Philosophy of Pancasila, the 1945 Constitution, the United Nations Charter and the Universal Declaration of Human Rights; and
 b. To enhance the promotion and protection of human rights in order to help achieve national development goals, namely, the full development of the Indonesians person and the overall development of the Indonesian society.
CHAPTER II
ACTIVITIES
Article 5
To realize the objectives provided for in Article 4, the National Commission shall conduct the following activities:
 a. disseminate information on the national as well as international outlook on human rights both to the Indonesian society and to the international community;
 b. examine various united Nations instrument on human rights with a view to presenting suggestions regarding the possibility of accession to and/or ratification of these instruments;
 c. monitor and investigate the implementation of human rightsand present views, considerations and suggestions to state institutions on the implementation of human rights; and
 d. foster regional and international co-operation in the promotion and protection of human rights.
CHAPTER III
ORGANIZATION AND MEMBERSHIP
Article 6
The National Commission shall have the following components:
 1.Plenary Commission;
 2.Sub-Commission; and
 3.General Secretariat.

Article 7
The Membership of the national Commission shall consist of prominent figures.

Article 8
1.the Plenary Commission shall consist of 25 members, a Chairperson and twoVice-Chairpersons.
2.The Chairperson and Vice-Chairperson of the Plenary Commission shall be elected by the members of the Plenary Commission and their election shall be confirmed by the President.
3.Initially the members of the Plenary Commission shall be appointed by the President.
4.The procedure for the appointment of subsequent members of the Plenary Commission shall be in accordance with its Statute.
5.The Chairperson, Vice-Chairpersons and members of the Plenary Commission shall serve for a tern of five years and can only be re-elected once.

Article 9
The Plenary Commission shall determine the Statute and Rule of procedure as well as the program of activities of the National Commission.

Article 10
1.The National Commission shall consist of:
 a. The Sub-Commission for Education and Dissemination on Human Rights;
 b. The Sub-Commission for the Examination of Human Rights Instruments; and
 c. The Sub-Commission for the monitoring of the Implementation of Human Rights.
2. Each Sub-Commission shall be headed by a Chairperson who shall assisted by a Vice-person and a staff as warranted.
3. The Chairperson, Vice-Chairperson and the staff of the Sub-Commission shall function on a full-time basis.

Article 11
The General Secretariat shall provide secretarial services for the National Commission.

Article 12
1.The General Secretariat shall be headed by a Secretary General who shall elected by members of the plenary Commission, in addition his appointment and termination of tenure shall be formalized by the Chairperson if the National Commission.
2.the Secretary General shall function on a full-time basis.

Article 13
All expenses incurred in the operations of the National Commission shall be charged to the budget of the State Secretariat.
CHAPTER IV
CLOSING
Article 14
This Presidential Decree enters into force on the day it is promulgated.
Done in Jakarta on 7 June 1993
PRESIDENT OF THE REPUBLIC OF INDONESIA

(Signed)

SOEHARTO
Copy (is) in accordance with the original.
Cabinet Secretariat R.I.
Head, Bureau of Law and Legislation

(signed)
Bambang Kesowo, Sh.LL.M.

Note:this English version is obtained from the Department of foreign Affairs of the Republic of Indonesia.

PRESIDENT
OF THE REPUBLIC OF INDONESIA

PRESIDENTIAL DECREE
NO. 455 / M / YEAR 1993
[ regarding ]
THE NATIONAL COMMISSION
ON HUMAN RIGHTS

THE PRESIDENT OF THE REPUBLIC OF INDONESIA

Considering :
 a. that in conjunction with the follow up of the Presidential Decree No. 50 Year 1993 regarding National Commission on Human Rights, it is deemed necessary to appoint the first members of the National Commission;
 b. that those names are mentioned inn the First Dictum of this Presidential Decree are considered to have fulfilled the requirement to be appointed as members of the National Commission as it is intended under paragraph a;

In view of :
 1. Article 4 verse (1) of the 1945 Constitution;
 2. the Presidential Decree No. 50 Year 1993 regarding the National Commission on Human Rights;

                   HAS DECIDED
To Determine :

FIRST :
To appoint as members of the National Commission on Human Rights for the term1993-1998 the following (person):
 1.Hj. Aisyah Aminy, S.H.;
 2.Dr. Albert Hasibuan, S.H.;
 3.Ali Said, S.H.;
 4.Asmara Nababan, S.H.;
 5.Prof. Dr. Baharuddin Lopa, S.H.;
 6.Drs. Bambang W. Soeharto;
 7.Dr. H. A.A. Baramuli, S.H.;
 8.Clementino Dos Reis Amaral;
 9.Ig. Djoko Moelyono;
 10.H.R. Djoko Soegianto, S.H.;
 11.Gani Djemat, S.H.;
 12.Prof. Dr. A. Hamid S. Attamimi, S.H.;
 13.K.H. Hasan Basri;
 14.Prof. Dr. Ch. Himawan, S.H.;
 15.B.N. Marbun, S.H.;
 16.Marzuki Darusman, S.H.;
 17.Prof. Miriam Budiardjo, M.A.;
 18.Prof. Dr. Mulasi, S.H.;
 19.Munawir Sjadzali, M.A.;
 20.Dr. Nurcholis Madjid;
 21.Dra. Roekmini Koesoemo Astoeti;
 22.Prof. Dr. Satjipto Rahardjo, S.H.;
 23.Soegiri, S.H.;
 24.Prof. Dr. Soetadyo Wignjosoebroto, M.P.A.;
 25.Prof, Dr. H.R. Sri Soemantri Martosoewignjo, S.H.;

SECOND :
this Presidential Decree is effective as of the day it is put forth with the provision that if there is an error, it will be amended accordingly.

COPY of this Presidential Decree is submitted to :
 1. the People's Consultative Assembly;
 2. the Supreme Advisory Council;
 3. the Parliament;
 4. the State Audit Authority;
 5. the Supreme Court;
 6. the Ministers of the VI th Development Cabinet;
 7. the Non-Departmental Government Institutions;
 8. the State Treasury

EXCERPT of this Presidential Decree is delivered to the persons concerned in order be used accordingly.
Decreed in Jakarta on December 7, 1993
PRESIDENT OF THE REPUBLIC OF INDONESIA

(signed)
SOEHARTO
Copy (is) in accordance with the original.
Cabinet Secretariat R.I.
Head, Bureau of Personnel

(signed)
Suwarno hadiwidodo, SH

Note:freely translated by the National Commission on Human Rights from the original Indonesian text.

PRESIDENT
OF THE REPUBLIC OF INDONESIA

PRESIDENTIAL DECREE
NO. 476/ M YEAR 1993
[ regarding ]
THE NATIONAL COMMISSION
ON HUMAN RIGHTS

THE PRESIDENT OF THE REPUBLIC OF INDONESIA

Considering :
 a. that the elected Chairperson of the National Commission on Human Rights in his letter of December 12, 1993, has informed (the President) that in the plenary session of the National Commission on December 10, 1993, the members (of the National Commission) have elected the Chairperson and the Vice-Chairperson for the period of 1993-1998 and henceforth has requested their confirmation;
 b. that in according with the Provision of Article 8 verse (2) of the Presidential Decree no. 50 year 1993, the Chairperson and the Vice-Chairperson of the National Commission on Human Rights who have been elected for the period of 1993-1998;

In view of :
 1. Article 4 verse (1) of the 1945 Constitution;
 2. Presidential Decree No. 50 Year 1993 on the National Commission on Human Rights;
 3. Presidential Decree No. 455/M Year 1993 in regard to the Appointment of the members of the National Commission on Human Rights;

                   HAS DECIDED
To Determine :

FIRST :
Confirm the Chairperson an Vice-Chairperson of the National Commission on Human Rights for the term 1993-1998 who have been elected by the members of the National Commission on Human Rights in their plenary session of December 10, 1993. i.e.,
 1.Ali Said, S.H. - Chairperson
 2.Prof Miriam budiardjo - Vice-Chairperson
 3.Marzuki Darusman, S.H. - Vice-Chairperson

SECOND :
This Presidential Decree is effective as of the day is put forth with the provision that there is an error, it will be amended accordingly.

COPY of this Presidential Decree is Submitted to :
 1.the People's Consultative Assembly;
 2.the Supreme Advisory Council;
 3.the Parliament;
 4.the State Audit Authority;
 5.the Supreme Court;
 6.the Ministers of the VIth Development Cabinet;
 7.the Non-Departmental Government Institutions;
 8.the State Treasury
Decree in Jakarta on December 22, 1993
PRESIDENT OF THE REPUBLIC OF INDONESIA

(signed)
SOEHARTO
Copy (is) in accordance with the original.
Cabinet Secretariat R.I.
Head, Bureau of Personnel

(signed)
Suwarno Hadiwidodo, SH

Note:freely translated by the National Commission on Human Rights from the original Indonesian text.

The Protection of Human Rights Act, 1993, No 10 of 1994 (India)

By admin on January 1, 1993 1:25 PM

An Act to provide for the constitution of a National Human Rights Commission. State Human Rights Commission in States and Human Rights Courts for better protection of Human Rights and for matters connected therewith or incidental thereto.

Be it enacted by the parliament in the forty-fourth year of the Republic of India as follows-

Chapter I PRELIMINARY
Chapter II THE NATIONAL HUMAN RIGHTS COMMISSION
Chapter III FUNCTIONS AND POWERS OF THE COMMISSION
Chapter IV PROCEDURE
Chapter V STATE HUMAN RIGHTS COMMISSIONS
Chapter VI HUMAN RIGHTS COURTS
Chapter VII FINANCE, ACCOUNTS AND AUDIT
Chapter VIII MISCELLANEOUS


Chapter I
PRELIMINARY


1. Short title, extent and commencement
(1) This Act may be called the Protection of Human Rights Act, 1993.
(2) It extends to the whole of India. Provided that it shall apply to the State of Jammu and Kashmir only in so far as it pertains to the matters relatable to any of the entries enumerated in List I or List lll in the Seventh Schedule to the Constitution as applicable to that State.
(3) It shall be deemed to have come into force on the 28th day of September, 1993.

2. Definitions
(1) In this Act, unless the context otherwise requires-

 (a) "armed forces" means the naval, military and air forces and includes any other armed forces of the Union;
 (b) "Chairperson" means the Chairperson of the Commission or of the State Commission, as the case may be;
 (c) "Commission" means the National Human Rights Commission under section 3;
 (d) "human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.
 (e) "Human Rights Court" means the Human Rights Court specified under section 30;
 (f) "International Covenants" means the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the 16th December, 1966;
 (g) "Member" means a Member of the Commission or of the State Commission, as the case may be, and includes the Chairperson;
 (h) "National Commission for Minorities" means the National Commission for Minorities constituted under section 3 of the National Commission for Minorities Act, 1992;
 (i) "National Commission for the Scheduled Castes and Scheduled Tribes" means the National Commission for the Scheduled Castes and Scheduled Tribes referred to in article 338 of the Constitution;
 (j) "National Commission for Women" means the National Commission for Women constituted under section 3 of the National Commission for Women Act, 1990;
 (k) "Notification" means a notification published in the official Gazette;
 (I) "Prescribed" means prescribed by rules made under this Act;
 (m) "Public servant" shall have the meaning assigned to it in section 21 of the Indian Penal Code;
 (n) "State Commission" means a State Human Rights Commission constituted under section 21.

(2) Any reference in this Act to a law, which is not in force in the State of Jammu and Kashmir, shall, in relation to that State, be construed as a reference to a corresponding law, if any, in force in that State.


Chapter II
THE NATIONAL HUMAN RIGHTS COMMISSION


3. Constitution of a National Human Rights Commission
(1) The Central Government shall constitute a body to be known as the National Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to it, under this Act.
(2) The Commission shall consist of

 (a) A Chairperson who has been a Chief Justice of the Supreme Court;
 (b) One Member who is or has been, a Judge of the Supreme Court;
 (c) One Member who is, or has been, the Chief Justice of a High Court;
 (d) Two Members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights.

(3) The Chairpersons of the National Commission for Minorities, the National Commission for the Scheduled Castes and Scheduled Tribes and the National Commission for Women shall be deemed to be Members of the Commission for the discharge of functions specified in clauses (b) to (j) of section 12.
(4) There shall be a Secretary-General who shall be the Chief Executive Officer of the Commission and shall exercise such powers and discharge such functions of the Commission as it may delegate to him.
(5) The headquarters of the Commission shall be at Delhi and the Commission may, with the previous approval of the Central Government, establish offices at o

4. Appointment of Chairperson and other Members
(1) The Chairperson and other Members shall be appointed by the President by warrant under his hand and seal. Provided that every appointment under this sub-section shall be made after obtaining the recommendations of a Committee consisting of

 (a) The Prime Minister -Chairperson
 (b) Speaker of the House of the People - Member
 (c) Minister in-charge of the Ministry of Home Affairs in the Government of India - Member
 (d) Leader of the Opposition in the House of the People - Member
 (e) Leader of the Opposition in the Council of States - Member
 (f) Deputy Chairman of the Council of States - Member

Provided further that no sitting Judge of the Supreme Court or sitting Chief Justice of a High Court shall be appointed except after contion with the Chief Justice of India.
(2) No appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Committee.

5. Removal of a Member of the Commission
(1) Subject to the provisions of sub-section (2), the Chairperson or any other Member of the Commission shall only be removed from his office by order of the President on the ground of proved misdemeanor or incapacity after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or such other Member, as the case may be, ought on any such ground to be removed.
(2) Notwithstanding anything in sub-section (1), the President may by order remove from office the Chairperson or any other Member if the Chairperson or such other Member, as the case may be

 (a) is adjudged an insolvent; or
 (b) engages during his term of office in any paid employment out side the duties of his office: or
 (c) is unfit to continue in office by reason of infirmity of mind or body; or
 (d) is of unsound mind and stands so declared by a competent court; or
 (e) is convicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude.


6. Term of office of Members
(1) A person appointed as Chairperson shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of seventy years, whichever is earlier.
(2) A person appointed as a Member shall hold office for a term of five years from the date on which he enters upon his office and shall be eligible for re-appointment for another term of five years. Provided that no Member shall hold office after he has attained the age of seventy years.
(3) On ceasing to hold office, a Chairperson or a Member shall be ineligible for further employment under the Government of India or under the Government of any State.

7. Member to act as Chairperson or to discharge his functions in certain circumstances
(1) In the event of the occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the President may, by notification, authorise one of the Members to act as the Chairperson until the appointment of a new Chairperson to fill such vacancy.
(2) When the Chairperson is unable to discharge his functions owing to absence on leave or otherwise, such one of the Members as the President may, by notification, authorise in this behalf, shall discharge the functions of the Chairperson until the date on which the Chairperson resumes his duties.

8. Terms and conditions of service of Members
The salaries and allowances payable to, and other terms and conditions of service of, the Members shall be such as may be prescribed. Provided that neither the salary and allowances nor the other terms and conditions of service of a Member shall be varied to his disadvantage after his appointment.

9. Vacancies, etc., not to invalidate the proceedings of the Commission.
No act or proceedings of the Commission shall be questioned or shall be invalidated merely on the ground of existence of any vacancy or defect in the constitution of the Commission.

10. Procedure to be regulated by the Commission
(1) The Commission shall meet at such time and place as the Chair son may think fit.
(2) The Commission shall regulate its own procedure.
(3) All orders and decisions of the Commission shall be audited by the Secretary-General or any other officer of the Commission duly authorised by the Chairperson in this behalf.

11. Officers and other staff of the Commission
(1) The Central Government shall make available to the Commission :

 (a) an officer of the rank of the Secretary to the Government of India who shall be the Secretary-General of the Commission; and
 (b) such police and investigative staff under an officer not below the rank of a Director General of Police and such other officers and staff as may be necessary for the efficient performance of the functions of the Commission.

(2) Subject to such rules as may be made by the Central Government in this behalf, the Commission may appoint such other administrative, technical and scientific staff as it may consider necessary.
(3) The salaries, allowances and conditions of service of the officers and other staff appointed under sub-section (2) shall be such as may be prescribed.


Chapter III
FUNCTIONS AND POWERS OF THE COMMISSION


12. Functions of the Commission
The Commission shall perform all or any of the following functions, namely :

 (a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, into complaint of
 (i) violation of human rights or abetment thereof or
 (ii) negligence in the prevention of such violation, by a public servant;
 (b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;
 (c) visit, under intimation to the State Government, any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates and make recommendations thereon;
 (d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;
 (e) review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures;
 (f) study treaties and other international instruments on human rights and make recommendations for their effective implementation;
 (g) undertake and promote research in the field of human rights;
 (h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;
 (i) encourage the efforts of non-governmental organisations and institutions working in the field of human rights;
 (j) such other functions as it may consider necessary for the protection of human rights.


13. Powers relating to inquiries
(1) The Commission shall, while inquiring into complaints under this Act, have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, and in particular in respect of the following matters, namely :

 (a) summoning and enforcing the attendance of witnesses and examine them on oath;
 (b) discovery and production of any document;
 (c) receiving evidence on affidavits;
 (d) requisitioning any public record or copy thereof from any court or office;
 (e) issuing commissions for the examination of witnesses or documents;
 (f) any other matter which may be prescribed.

(2) The Commission shall have power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of section 176 and section 177 of the Indian Penal Code.
(3) The Commission or any other officer, not below the rank of a Gazetted Officer, specially authorised in this behalf by the Commission may enter any building or place where the Commission has reason to believe that any document relating to the subject matter of the inquiry may be found, and may seize any such document or take extracts or copies therefrom subject to the provisions of section 100 of the Code of Criminal Procedure, 1973, in so far as it may be applicable.
(4) The Commission shall be deemed to be a civil court and when any offence as is described in section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1973, forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case has been forwarded to him under section 346 of the Code of Criminal Procedure, 1973.
(5) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code, and the Commission shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

14. Investigation
(1) The Commission may, for the purpose of conducting any investigation pertaining to the inquiry, utilise the services of any officer or investigation agency of the Central Government or any State Government with the concurrence of the Central Government or the State Government, as the case may be.
(2) For the purpose of investigating into any matter pertaining to the inquiry, any officer or agency whose services are utilised under sub-section (1 ) may, subject to the direction and control of the Commission.

 (a) summon and enforce the attendance of any person and examine him;
 (b) require the discovery and production of any document; and
 (c) requisition any public record or copy thereof from any office.

(3) The provisions of section 15 shall apply in relation to any statement made by a person before any officer or agency whose services are utilised under sub-section (1 ) as they apply in relation to any statement made by a person in the course of giving evidence before the Commission.
(4) The officer or agency whose services are utilised under sub-section (1 ) shall investigate into any matter pertaining to the inquiry and submit a report thereon to the Commission within such period as may be specified by the Commission in this behalf.
(5) The Commission shall satisfy itself about the correctness of the facts stated and the conclusion, if any, arrived at in the report subbed to it under sub-section (4) and for this purpose the Commission may make such inquiry (including the examination of the person or persons who conducted or assisted in the investigation) as it thinks fit.

15. Statement made by persons to the Commission
No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement:

  Provided that the statement -
 (a) is made in reply to the question which he is required by the Commission to answer; or
 (b) is relevant to the subject matter of the inquiry.


16. Persons likely to be prejudicially affected to be heard

  If, at any stage of the inquiry, the Commission -
 (a) considers it necessary to inquire into the conduct of any person; or
 (b) is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry; it shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence: Provided that nothing in this section shall apply where the credit of a witness is being impeached.



Chapter IV
PROCEDURE


17. Inquiry into complaints
The Commission while inquiring into the complaints of violations of human rights may-
(i) call for information or report from the Central Government or any State Government or any other authority or organisation subordinate thereto within such time as may be specified by it;

  Provided that -
 (a) if the information or report is not received within the time stipulated by the Commission, it may proceed to inquire into the complaint on its own;
 (b) if, on receipt of information or report, the Commission is satisfied either that no further inquiry is required or that the required action has been initiated or taken by the concerned Government or authority, it may not proceed with the complaint and inform the complainant accordingly;

(ii) without prejudice to anything contained in clause (i), if it considers necessary, having regard to the nature of the complaint, initiate an inquiry.

18. Steps after inquiry
The Commission may take any of the following steps upon the completion of an inquiry held under this Act namely :

 (1) where the inquiry discloses, the commission of violation of human rights or negligence in the prevention of violation of human rights by a public servant, it may recommend to the concerned Government or authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons;
 (2) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;
 (3) recommend to the concerned Government or authority for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary;
 (4) subject to the provisions of clause (5), provide a copy of the inquiry report to the petitioner or his representative;
 (5) the Commission shall send a copy of its inquiry report together with its recommendations to the concerned Government or authority and the concerned Government or authority shall, within a period of one month, or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission;
 (6) the Commission shall publish its inquiry report together with the comments of the concerned Government or authority, if any, and the action taken or proposed to be taken by the concerned Government or authority on the recommendations of the Commission.


19. Procedure with respect to armed forces
(1) Notwithstanding anything contained in this Act, while dealing with complaints of violation of human rights by members of the armed forces, the Commission shall adopt the following procedure, namely :

 (a) it may, either on its own motion or on receipt of a petition, seek a report from the Central Government;
 (b) after the receipt of the report, it may, either not proceed with the complaint or, as the case may be, make its recommendations to that Government.

(2) The Central Government shall inform the Commission of the action taken on the recommendations within three months or such further time as the Commission may allow.
(3) The Commission shall publish its report together with its recommendations made to the Central Government and the action taken by that Government on such recommendations.
(4) The Commission shall provide a copy of the report published under sub-section (3) to the petitioner or his representative.

20. Annual and special reports of the Commission
(1) The Commission shall submit an annual report to the Central Government and to the State Government concerned and may at any time submit special reports on any matter which, in its opinion, is of such urgency or importance that it should not be deferred till submission of the annual report.
(2) The Central Government and the State Government, as the case may be, shall cause the annual and special reports of the Commission to be laid before each House of Parliament or the State Legislature respectively, as the case may be, along with a memorandum of action taken or proposed to be taken on the recommendations of the Commission and the reasons for non-acceptance of the recommendations, if any.


Chapter V
STATE HUMAN RIGHTS COMMISSIONS


21. Constitution of State Human Rights Commissions
(1) A State Government may constitute a body to be known as the (name of the State) Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to, a State Commission under this chapter.
(2) The State Commission shall consist of

 (a) a Chairperson who has been a Chief Justice of a High Court;
 (b) one Member who is, or has been, a Judge of a High Court;
 (c) one Member who is, or has been, a district judge in that State;
 (d) two Members to be appointed from amongst persons having knowledge of, oR practical experience in, matters relating to human rights.

(3) There shall be a Secretary who shall be the Chief Executive Officer of the State Commission and shall exercise such powers and discharge such functions of the State Commission as it may delegate to him.
(4) The headquarters of the State Commission shall be at such place as the State Government may, by notification, specify.
(5) A State Commission may inquire into violation of human rights only in respect of matters relatable to any of the entries enumerated in List II and List lll in the Seventh Schedule to the Constitution:
Provided that if any such matter is already being inquired into by the Commission or any other Commission duly constituted under any law for the time being in force, the State Commission shall not inquire into the said matter:
Provided further that in relation to the Jammu and Kashmir Human Rights Commission, this sub-section shall have effect as if for the words and figures "List ll and List lll in the Seventh Schedule to the Constitution", the words and figures "List lll in the Seventh Schedule to the Constitution as applicable to the State of Jammu and Kashmir and in respect of matters in relation to which the Legislature of that State has power to make laws" had been substituted.

22. Appointment of Chairperson and other Members of State Commission
(1) The Chairperson and other Members shall be appointed by the Governor by warrant under his hand and seal:
Provided that every appointment under this sub-section shall be made after obtaining the recommendation of a Committee consisting of

 (a) the Chief Minister - Chairperson
 (b) Speaker of the Legislative - Member Assembly
 (c) Minister in-charge of the Department - Member of Home, in that State
 (d) Leader of the Opposition in the - Member Legislative Assembly

Provided further that where there is a Legislative Council in a State, the Chairman of that Council and the Leader of the Opposition in that Council shall also be members of the Committee.
Provided also that no sitting Judge of a High Court or a sitting District Judge shall be appointed except after consultation with the Chief Justice of the High Court of the concerned State.
(2) No appointment of a Chairperson or a Member of the State Commission shall be invalid merely by reason of any vacancy in the Committee.

23. Removal of a Member of the State Commission
(1) Subject to the provisions of sub-section (2), the Chairperson or any other member of the State Commission shall only be removed from his office by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or such other Member, as the case may be, ought on any such ground to be removed.
(2) Notwithstanding anything in sub-section (1), the President may by order remove from office the Chairperson or any other Member if the Chairperson or such other Member, as the case may be -

 (a) is adjudged an insolvent; OR
 (b) engages during his term of office in any paid employment outside the duties of his office; OR
 (c) is unfit to continue in office by reason of infirmity of mind or body; OR
 (d) is of unsound mind and stands so declared by a competent court; OR
 (e) is convicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude.


24. Term of office of Members of the State Commission
(1) A person appointed as Chairperson shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of seventy years, whichever is earlier;
(2) A person appointed as a Member shall hold office for a term of five years from the date on which he enters upon his office and shall be eligible for re-appointment for another term of five years;
Provided that no Member shall hold office after he has attained the age of seventy years.
(3) On ceasing to hold office, a Chairperson or a Member shall be ineligible for further employment under the Government of a State or under the Government of India.

25. Member to act as Chairperson or to discharge his functions in certain circumstances
(1) In the event of the occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the Governor may, by notification, authorise one of the Members to act as the Chairperson until the appointment of a new Chairperson to fill such vacancy.
(2) When the Chairperson is unable to discharge his functions owing to absence on leave or otherwise, such one of the Members as the Governor may, by notification, authorise in this behalf, shall discharge the functions of the Chairperson until the date on which the Chairperson resumes his duties.

26. Terms and conditions of service of Members of the State Commission
The salaries and allowances payable to, and other terms and conditions of service of, the Members shall be such as may be prescribed by the State Government.
Provided that neither the salary and allowances nor the other terms and conditions of service of a Member shall be varied to his disadvantage after his appointment.

27. Officers and other staff of the State Commission
(1) The State Government shall make available to the Commission

 (a) an officer not below the rank of a Secretary to the State Government who shall be the Secretary of the State Commission; and
 (b) such police and investigative staff under an officer not below the rank of an Inspector General of Police and such other officers and staff as may be necessary for the efficient performance of the functions of the State Commission.

(2) subject to such rules as may be made by the State Government in this behalf, the State Commission may appoint such other administrative, technical and scientific staff as it may consider necessary.
(3) The salaries, allowances and conditions of service of the officers and other staff appointed under sub-section (2) shall be such as may be prescribed by the State Government.

28. Annual and special reports of State Commission
(1) The State Commission shall submit an annual report to the State Government and may at any time submit special reports on any matter which, in its opinion, is of such urgency or importance that it should not be deferred till submission of the annual report.
(2) The State Government shall cause the annual and special reports of the State Commission to be laid before each House of State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House along with a memorandum of action taken or proposed to be taken on the recommendations of the State Commission and the reasons for non-acceptance of the recommendations, if any.

29. Application of certain provisions relating to National Human Rights Commission to State Commissions
The provisions of sections 9, 10, 12, 13, 14, 15, 16, 17 and 18 shall apply to a State Commission and shall have effect, subject to the following modifications, namely :-

 (a) references to "Commission" shall be construed as refer ences to "State Commission";
 (b) in section 10, in sub-section (3), for the word "Secretary General", the word "Secretary" shall be substituted;
 (c) in section 12, clause (f) shall be omitted;
 (d) in section 17, in clause (i), the words "Central Government or any" shall be omitted;



Chapter VI
HUMAN RIGHTS COURTS


30. For the purpose of providing speedy trial of offences arising out of violation of human rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district a Court of Session to be a Human Rights Court to try the said offences.

  Provided that nothing in this section shall apply if
 (a) a Court of Session is already specified as a special court; or
 (b) a special court is already constituted, for such offences under any other law for the time being in force.


31. Special Public Prosecutor
For every Human Rights Court, the State Government shall, by notification, specify a Public Prosecutor or appoint an advocate who has been in practice as an advocate for not less than seven years, as a Special Public Prosecutor for the purpose of conducting cases in that Court.


Chapter VII
FINANCE, ACCOUNTS AND AUDIT


32. Grants by the Central Government
(1) The Central Government shall after due appropriation made by Parliament by law in this behalf, pay to the Commission by way of grants such sums of money as the Central Government may think fit for being utilised for the purposes of this Act.
(2) The Commission may spend such sums as it thinks fit for performing the functions under this Act, and such sums shall be treated as expenditure payable out of the grants referred to in sub-section (1).

33. Grants by the State Government
(1) The State Government shall, after due appropriation made by Legislature by law in this behalf, pay to the State Commission by way of grants such sums of money as the State Government may think fit for being utilised for the purposes of this Act.
(2) The State Commission may spend such sums as it thinks fit for performing the functions under Chapter V, and such sums shall be treated as expenditure payable out of the grants referred to in sub-section (1).

34. Accounts and Audit
(1) The Commission shall maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the Central Government in consultation with the Comptroller and Auditor-General of India.
(2) The Accounts of the Commission shall be audited by the Comptroller and Auditor-General at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the Commission to the Comptroller and Auditor-General.
(3) The Comptroller and Auditor-General or any person appointed by him in connection with the audit of the accounts of the Commission under this Act shall have the same rights and privileges and the authority in connection with such audit as the Comptroller and Auditor-General generally has in connection with the audit of Government ac counts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Commission.
(4) The accounts of the Commission as certified by the Comptroller and Auditor-General or any other person appointed by him in this behalf, together with the audit report thereon shall be forwarded only to the Central Government by the Commission and the Central Government shall cause the audit report to be laid as soon as may be after it is received before each House of Parliament.

35. Accounts and Audit of State Commission
(1) The State Commission shall maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the State Government in consultation with the Comptroller and Auditor-General of India.
(2) The accounts of the State Commission shall be audited by the Comptroller and Auditor-General at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the State Commission to the Comptroller and Auditor-General.
(3) The Comptroller and Auditor-General or any person ap ed by him in connection with the audit of the accounts of the State Commission under this Act shall have the same rights and privileges and the authority in connection with such audit as the Comptroller and Auditor-General generally has in connection with the audit of Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the State Commission.
(4) The accounts of the State Commission, as certified by the Comptroller and Auditor-General or any other person appointed by him in this behalf, together with the audit report thereon, shall be forwarded annually to the State Government by the State Commission and the State Government shall cause the audit report to be laid, as soon as may be after it is received, before the State Legislature.


Chapter VIII
MISCELLANEOUS


36. Matters not subject to jurisdiction of the Commission
(1) The Commission shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force.
(2) The Commission or the State Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed.

37. Constitution of special investigation teams
Notwithstanding anything contained in any other law for the time being in force, where the Government considers it necessary so to do, it may constitute one or more special investigation teams, consisting of such police officers as it thinks necessary for purposes of investigation and prosecution of offences arising out of violations of human rights.

38. Protection of action taken in good faith
No suit or other legal proceeding shall lie against the Central Government, State Government, Commission, the State Commission or any Member thereof or any person acting under the direction either of the Central Government, State Government, Commission or the State Commission in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules or any order made thereunder or in respect of the publication by or under the authority of the Central Government, State Government, Commission or the State Commission of any report paper or proceedings.

39. Members and officers to be public servants
Every Member of the Commission, State Commission and every officer appointed or authorised by the Commission or the State Commission to exercise functions under this Act shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code.

40. Power of Central Government to make rules
(1) The Central Government may, by notification, make rules to carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the fore ing power, such rules may provide for all or any of the following matters namely :

 (a) the salaries and allowances and other terms and conditions of service of the Members under section 8;
 (b) the conditions subject to which other administrative, technical and scientific staff may be appointed by the Commission and the salaries and allowances of officers and other staff under sub-section (3) of section 11;
 (c) any other power of a civil court required to be prescribed under clause (f) of sub-section (1) of section 13;
 (d) the form in which the annual statement of accounts is to be pre pared by the Commission under sub-section (1 ) of section 34; and
 (e) any other matter which has to be, or may be, prescribed.

(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

41. Power of State Government to make rules
(1) The State Government may, by notification, make rules to carry out the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :

 (a) the salaries and allowances and other terms and conditions of service of the members under section 26;
 (b) the conditions subject to which other administrative, technical and scientific staff may be appointed by the State Commission and the salaries and allowances of officers and other staff under sub-section (3) of section 27;
 (c) the form in which the annual statement of accounts is to be prepared under sub-section (1 ) of section 35.

(3) Every rule made by the State Government under this section shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such Legislature consists of one House, before that House.

42. Power to remove difficulties
(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government, may by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty. Provided that no such order shall be made after the expiry of the period of two years from the date of commencement of this Act.
(2) Every order made under this section shall, as soon as may be after it is made, be laid before each house of Parliament.

43. Repeal and Savings
(1) The Protection of Human Rights Ordinance, 1993 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance, shall be deemed to have been done or taken under the corresponding provisions of this Act.

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